Stepchild contesting a step-parent’s will – Queensland

When a stepchild has been left out of the will of a deceased step-parent

A step-parent can be in a difficult position when making a will, depending on the circumstances.   In a Queensland case¹ a step-parent’s will was challenged by a stepchild seeking provision out of the estate of his widowed step-mother. Her husband, the applicant’s father had pre-deceased her.  The applicant was his son and an only child.

Before the applicant’s father died he and his wife each made wills in similar terms.  In these wills each left everything to the other.  Then on the last to die, in equal proportions to the the applicant and a nephew.  The wife had no children of her own and so no descendants.  She only had her step-child.

Step-parent made a new will

On the applicant’s father’s death, the step-mother was the sole beneficiary of his estate.  After selling various assets she made a new will.  She left her estate of around $3 million to her nephew and niece, nothing to her stepchild. 

He brought legal proceedings under Part 4 of the Succession Act 1981 (QLD) to seek provision out of her estate.  These provisions set out the legal rules on family provision.  Section 41 of the Succession Act 1981 makes a deceased person liable for the proper maintenance and support of certain categories of people including the deceased’s spouse, partner, child or dependant. 

Stepchild is treated the same as a child in Queensland

Under section 40 of the Succession Act 1981 (QLD), a stepchild is the same as a child.  It states:

“..child means, in relation to a deceased person, any child, stepchild or adopted child of that person.”

The question the Court had to determine was whether the applicant was left without adequate provision for his proper maintenance and support and if so, what provision should be made. 

The Court noted the substantial estate was the product of joint efforts and management of both the father of the applicant and the stepmother.  Evidence showed that the applicant had a good relationship with his father and was a dutiful and respectful step-son to his step-mother.  Despite the cordial facade by the stepmother, the Court found that she had felt no warmth towards her stepson.  Nor was there evidence that she was close to her named beneficiaries in her will. The applicant was found to be in a modest financial position with no real prospect of advancement.

In conclusion the Court was satisfied that she was under a moral duty to make provision out of her estate for her step-son, and that she had neglected to do so by making no provision.  The Court ordered that an amount should be paid to the applicant from the residue of the estate.

Stepchildren challenging a step-mother’s will

In another Queensland case a claim was brought by seven step-children for adequate provision out of their deceased stepmother’s estate.²   The step-children had no family relationship with their deceased stepmother, who died aged 84. The claim for proper maintenance and support was brought by two of them, and the others joined.  In all there were seven applicants, all being children of their father from his first marriage, and stepchildren of the deceased.  Their father had died some years before.

Part of the stepmother’s estate had derived from the step-childrens’ father.  There was evidence that the father had sought to make provision, as best he could in his circumstances, between all his children with their varying needs, and his second wife.  However the deceased left everything to an elderly friend, who had also acted as a carer in her later years.  The stepmother had no family of her own, that is, no natural children.

Could any of the stepchildren make a claim?

The Court had to decide whether any or all of the seven stepchildren, could make a claim for family provision. Succession law in Queensland requires that the first hurdle an applicant needs to show is that the deceased failed to make adequate provision from their  estate for the applicant’s proper maintenance and support: section 41(1) of the Succession Act 1981.

But in this case where the stepmother, who has no established relationship with any of the stepchildren, was she under a moral obligation to those stepchildren because her estate contained assets originating from the childrens’ father, and which may otherwise have found their way to them?  Another issue for the Court was the extent to which the father’s assets comprised the deceased’s estate.

Meaning of stepchild and when the relationship between stepchild and step-parent stops

The Queensland succession legislation makes it clear when the relationship between a stepchild and step-parent stops, section 40A of the Succession Act 1981 (QLD). 

The Court ordered that further provision be made for the proper maintenance and support out of the Estate for two of the stepchildren.  This was because they were in the most necessitous circumstances of all the applicants so as to place them in a category which should have attracted the support of the deceased. The others’ claims were dismissed. The Court contrasted what it said was the extreme need of these two applicants with the slightly better circumstances of the other stepchildren and the comfortable circumstances of the sole beneficiary named in the will.  It was relevant that some part of the deceased estate originated from their father.

Different points of view on who can be a stepchild in a Victorian case was considered by the Court there and who should participate in the inheritance.

1.  Currey v Gault [2010] QSC 27
2.  Freeman v Jacques [2005] QSC 200

B Stead
BHS Legal