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Family provision claim in QLD: Can a step-child apply?

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If you are a stepchild and you feel you were not fairly provided for by someone with whom you have a family relationship with, or someone that you were dependent on, you may have the right to make a family provisions claim in QLD.

Our dedicated and experienced Family Provision Lawyers team, at O’Connor Ruddy, and Garrett, will ensure that you have all the necessary information to make your family provisions claim.

What is a family provision claim: How does it work?

Along with the help of your family provision lawyer, there are a few steps you will need to take to get your family provision claim underway. 

1. Understand your options
Getting preliminary legal advice, concerning:

  1. Background of matter;
  2. Your eligibility to claim and your rights to claim;
  3. Relevant limitation dates by which time you must take certain steps/actions;
  4. The composition of the estate – what the estate is made up of i.e. property, shares, material items etc;
  5. Details of your own financial position; and
  6. Any other information that will affect the prospects and potential merits of your family provision claim.
2. Issuing a notice to claim (the first step to contesting a will)
Getting preliminary legal advice, concerning:

  1. Within 6 months of the date of death, * giving written notice to the executor of the estate (or their solicitors) of your intention to claim further provision from the estate.
  2. If so instructed, an early offer of settlement may be made and parties may enter into informal negotiations seeking to resolve the matter early, with minimal legal costs to both parties.
3. Preparing and filing your claim and supporting affidavits
  1. Within 9 months of the date of death, * filing your claim with the relevant court.
  2. From information obtained as part of step 1, preparing your affidavit (sworn statement of evidence) addressing your eligibility, relevant background of claim, financial position and other relevant information.
  3. Serving your claim, supporting affidavit and a draft directions order (i.e. timetable for completion of steps in the matter, for notifying affected persons, filing of affidavits by each party, and referral of matter to mediation).
  4. Similar to step 2, if so instructed, early settlement offers may be made and parties may continue with informal negotiations seeking early resolution.
4. Settlement conference and mediation
  1. After step 3, parties follow timeframes set out in agreed directions order.  
  2. After completion of initial steps (notifying affected persons, filing of affidavit evidence by parties), then a settlement conference and mediation is arranged.
  3. If matter is resolved at mediation, then implement final steps in resolving matter as per agreed terms of settlement (this may involve obtaining final orders from the court, to give effect to the terms of settlement agreed between the parties).
5. When contesting a will doesn’t end at mediation, we prepare for trial.
  1. Where mediation isn’t successful, then obtaining further directions from the court regarding timeframes for filing of any further evidence, and other procedural compliance matters leading up to a court hearing and trial.
  2. Preparing affidavit evidence in compliance with directions for court trial.
  3. Conduct of court trial and hearings.
  4. Obtaining judgement from the court, and implementation of court orders following trial.

*These timeframes are Queensland specific; as part of step 1 investigations, it ought to be identified the relevant jurisdiction for your potential claim, and the timeframes relevant to that jurisdiction.

 

Who can make a family provision claim on a deceased estate?

Under the Queensland Succession Act 1981 the following people can make a family provision claim on the deceased estate:

A spouse, which includes:

  • A de-facto partners
  • A civil partner and in limited circumstances
  • An ex-husband or wife

A child, which includes:

  • Biological children
  • Stepchildren; and
  • Adopted children

A dependent; Which is a person being wholly or substantially supported by the deceased person at the time of their death.

 

Are stepchildren legal dependents in QLD?

A step-child is a legal dependent of a deceased step-parent if at the time of death, the deceased is still married to the biological parent. 

 

What are the inheritance rights for stepchildren in QLD?

As long as there was no formal end to the relationship of the step-child’s biological parent and the step-parent, the court still sees the child as a step-child of the deceased person.  

 

What will the courts consider when you are making a family provision claim?

In order for your claim (related to wills and estates) to be successful, you have to prove that you have not been provided adequate provision from the estate. Estate disputes are unique and depend on many factors. Generally, the Court will consider five things when determining your application:

  • Your financial position.
  • The financial position of the other beneficiaries. 
  • The size and nature of the deceased estate.
  • The totality of the relationship between yourself and the deceased.
  • The relationship between the deceased and the other persons who have a legitimate claim on the estate.

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. Liability limited by a scheme approved under professional standards legislation (personal injury work exempted).

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If you need a copy of a Will and/or are seeking legal advice, the team at O'Connor Rudy and Garrett can assist you. We will contact you to confirm additional details and then organise contacting the required parties to secure a copy of the Will for you.