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Can A Stepchild Contest A Will? (QLD)

A stepchild has the same rights as a biological or adopted child to contest a will in Queensland. As long as the stepparent and the child’s natural parent did not divorce before the testator’s death, then the stepchild can make a Family Provision Application to the Supreme Court seeking redistribution of the deceased estate. This article outlines the right of a stepchild to contest a will in Queensland, with reference to applicable case history.

What Is A Family Provision Order?

A testator can draft their will in any way they see fit, but there is legal provision for entitled parties to question the fairness of a testator’s final wishes. Eligible individuals can ask the Supreme Court to overrule the wishes of the deceased and ensure their proper maintenance and support through a Family Provision Order. Only certain individuals who are listed in the Succession Act 1981 are eligible to file an application for such an order.

Who Can Contest A Will In Queensland?

The only parties that can contest a will in Queensland under section 41 of the Succession Act 1981 are:

  • The husband or wife of the deceased;
  • The de facto partner of the deceased;
  • The registered partner of the deceased (in accordance with the Relationships Act 2011);
  • The former spouse or partner of the deceased;
  • A biological child of the deceased;
  • An adopted child of the deceased (in accordance with the Adoption Act 2009);
  • A child of the deceased as yet unborn;
  • A stepchild of the deceased;
  • A parent of the deceased if they were a dependent of the deceased;
  • A parent of a child of the deceased if the child is under the age of eighteen and a dependent of the deceased; and
  • A minor who was wholly or substantially dependent on the deceased.

As this list shows, succession legislation in Queensland explicitly defines a child to include any child of the deceased, including a stepchild. As such, a stepchild can legally contest a will in Queensland, regardless of their age, student status or dependence on the deceased.

Stepchildren and Estate Law

A stepchild can still contest a will if their natural parent dies before the testator, as long as the relationship was not legally dissolved before the natural parent’s death. In that circumstance, the relationship between stepchild and stepparent remains an enduring legal connection. On the other hand, if the relationship ends in divorce before either party’s death, then the child is no longer considered a stepchild eligible to contest the will.

If the stepparent adopted the stepchild at any point, then it does not matter when or if the relationship between the parents dissolved, the adopted child is legally the “issue” of the deceased and entitled to contest a will in the same way as a biological child.

A Stepchild Can Contest A Will: Case Study

In the case of Currey v Gault [2010], a stepchild sought provision from the estate of their widowed stepmother. The child’s natural parent had predeceased the stepmother and she had no other children or descendants, apart from the stepchild. The stepmother and her husband drafted wills that nominated each other as the sole beneficiary, with the stepchild and a nephew as contingent beneficiaries.

After the husband’s death, the stepmother drafted a new will that bequeathed the three million dollar estate to her niece and nephew and disinherited the stepchild. The stepchild contested the will and applied for appropriate provision from the deceased estate.

The court found that both the stepmother and her deceased husband contributed to the substantial estate. They judged that the claimant was on good terms with his father and was respectful and dutiful to his stepmother, but that she had no reciprocal feelings for her stepson. The stepmother also had no especially close relationship with, or responsibility for, the niece and nephew who she made the beneficiaries of her will.

The claimant proved that he was in financial need with little opportunity for advancement if he did not receive provision from the estate. The court was ultimately satisfied that the testator had a moral duty to provide for her stepson and that she had neglected to do so by disinheriting him. The court ordered that the claimant receive a share of the residual estate in the amount of $900,000.

Time Limits For A Stepchild To Contest A Will

A stepchild who intends to contest a will must do so within the statutory time limits. The stepchild needs to inform the executor of the estate within six months of the death of the testator, and then file an FPA within nine months of the date of death. The court will only grant an extension to allow a late application if there are extenuating circumstances to excuse the delay.

Our contested wills team can help you verify your rights as a stepchild to contest a will, and assist you with making a compelling Family Provision Application. For any legal assistance with probate, testamentary or succession matters, please call our offices on 1300 038 223 or make an appointment without delay.

Dr Nicola Bowes

This article was written by Dr Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first class honours from the University of Tasmania, a Bachelor of Laws with first class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade working in higher education, Nicola joined Armstrong Legal in 2020.

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