One question we are frequently asked, regarding the estate of the deceased is can a child, grandchild, or stepchild challenge a will?
The simple answer is yes, but like most legal questions, it depends on the facts. The Succession Act in Queensland provides a child can challenge an estate claiming they have not been given proper maintenance and support.
Defining the legal terms involved in this question
What does a child of the deceased include?
The Act provides a child means, in relation to a deceased person, any child, stepchild or adopted child of that person.
A biological child:
Any biological child is the natural child of the person who has passed away.
Step-children are not as straightforward, but a stepchild has the right to challenge a will as long as;
(a) the stepchild is the child of a spouse of the deceased person; and
(b) a relationship of stepchild and stepparent between the person and the deceased person did not stop, as detailed below…..
The relationship of stepchild and stepparent stops on:
(a) the divorce of the deceased person and the stepchild’s parent; or
(b) the termination of the civil partnership between the deceased person and the stepchild’s parent; or
(c) the ending of the de facto relationship between the deceased person and the stepchild’s parent.
The matter of a stepchild challenging a will
To remove any doubt, the Act provides the relationship of stepchild and stepparent does not stop merely because:
(a) the stepchild’s biological parent died before the deceased person (stepparent) but the marriage, civil partnership or de facto relationship between the deceased person and the parent was still valid i.e they were still together.
(b) If the deceased person (stepparent) remarried, entered into a civil partnership or formed a de facto relationship after the death of the stepchild’s parent, without a formal end to the previous relationship, the stepchild is still seen by the courts as a stepchild of the deceased stepparent.
A word on adopted children and grandchildren
An adopted child:
If a formal adoption took place and a child was legally adopted by the deceased, then that child will be considered the deceased’s child and can claim against the deceased’s estate. Although, if the child was adopted out by their natural parent – this child can not contest the will of their natural parent when they pass away.
Do grandchildren have a right to claim against the estate?
Unlike a child, a grandchild does not have an automatic right to make a claim against the estate. Although a grandchild can still challenge their grandparent’s estate if they are under the age of 18 and meet the definition of a ‘dependant’. That is if the grandchild was being wholly or substantially maintained or supported by their grandparent at the time of the grandparent’s death.
Common examples where a grandchild has successively claimed against an estate is where;
- The grandparent adopted more of a parent role or carer for their grandchild for many reasons; or
- They pay for their grandchild’s living expenses, including school fees etc.
Can stepchildren contest a will (and children with other relationships to the deceased)?
If you are a child, stepchild, adopted child or grandchild and think you have not been provided with adequate provision from an estate, please contact us for a free initial consultation. Strict time limits apply, so do not delay.
Article written by Christopher O’Connor – Director
This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please let us know.
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