Defining “Who is a child”
If you believe that you are the child of the deceased and want to make an application for further provision from an estate in Queensland, you need to ensure you fit one of the following categories of what the court considers is a child.
Effectively, a child of a deceased includes:
- A natural child;
- An adopted child; or
- A step-child.
Who is a natural child?
Under section 40 of the Succession Act 1981 (Qld), any child who is a natural child, is a child of the deceased. Although there is an exception to this rule, if a child was adopted out by their natural parent, who is the deceased, the child will not be considered a child under the Succession Act 1981 (Qld).
So, in summary a child who was adopted out by the deceased is not eligible to make an application for further provision from the deceased’s estate.
Who is 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 under section 40 of the Succession Act 1981 (Qld).
Therefore this child can make an application for further provisions of the estate.
Who are step-children?
With the increase in blended families over the past two decades, step-children are more common and do have the right to make an application for further provisions from a deceased estate if they fit the following criteria.
In order for a child to be considered a “step-child” under the Succession Act 1981 (Qld), the deceased must have either:
- been married to the step-child’s natural parent at the time of the deceased’s death; or
- be in a de facto relationship with the step-child’s natural parent at the time of the deceased’s death, where they were living together as a couple on a genuine domestic basis for a continuous period of 2 years, ending on the deceased’s death.
Children who satisfy either of the above will be considered a step-child and will be eligible to make an application for further provision from their deceased step-parent’s estate.
If you have any questions on the above article please don’t hesitate to call our office on 3221 9722.
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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