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FAMILY PROVISION APPLICATIONS - WHO IS A 'CHILD'?

Fri, 8 Feb 2019

FAMILY PROVISION APPLICATIONS - WHO IS A 'CHILD'?

Following on from our previous articles highlighting the importance of having a current Will and up-to-date estate planning in place, a query that can crop up when providing clients with advice in relation to making a Will is how they can reduce the possibility of a claim being made on an estate after they have passed.

The typical nuclear family (dad, mum and two kids) is no longer the most common family structure in Australia, and instead we have a diverse range of family combinations including couples with no children, couples with only one child, same-sex couples with no children, same-sex couples with one or more children who are the natural or adopted child of one of the couple, adopted children, step-children, grandparent-led families, blended families and the list goes on.

It goes without saying that the general form and content of Wills have also needed to be changed to keep up with these changing family ideals and a deeper and more thorough contemplation of estate planning outcomes needs to be considered by both client and lawyer.

It is generally accepted that you are able to choose who you leave your possessions and money to after you have passed.  However, where you have close family members or people who are dependent on you and it is likely that those people will suffer hardship as a result of the way you have distributed your assets to others in your Will, then they may be able to lodge a family provision application with the court, and the court may award a portion of your estate to them if they are successful in that action.

This article specifically relates to the eligibility of a ‘child’ to make a family provision application pursuant to Queensland succession legislation.  Our Gold Coast team will be canvassing the eligibility of other people who may be eligible to make an application for provision from an estate in upcoming articles.

At its foundation, there is a three-fold definition attributable to who is a child of the deceased in the Succession Act 1981 (Qld), namely:

-          A biological child (including unborn children who survive for 30 days after birth);

-          An adopted child; or

-          A step-child.

With respect to a natural child, all natural children of the deceased are included in the definition, unless the deceased adopted the child out, in which case that child will have no avenue to make an application.

Conversely, if the deceased adopted a child by formal means, then that child will fall within the definition of a ‘child’ of the deceased and be eligible to make an application.

The definition of ‘step-children’ is where it becomes complicated, and therefore it is important to obtain specific legal advice which is tailored to your individual circumstances. 

The deceased must have either:

-          Been married to the natural parent of the step-child at the time of death; or

-          Been in a step-child/step-parent relationship with the step-child by virtue of being in a genuine domestic de facto relationship with the step-child’s natural parent which had been in effect for a continuous period of two years prior to the deceased’ death).

The first prong is relatively straightforward, but when considering the second prong, it is important to realise that this is applicable regardless of whether the deceased is actually the natural parent of the child or not.

For example, Ken and Jane have been in a genuine de facto relationship for 7 years, and Jane has a 15 year old son Bill from a previous relationship.  If Jane dies while they are still in a de facto relationship, then Bill would be considered to be Ken’s step-child for the remainder of his life. While this doesn’t mean he will automatically be entitled to any of Ken’s estate, he would have standing to make an application to the court should Ken pass away and it would be up to the court to determine what, if any, he was entitled to.

There are strict time limits in relation to family provision applications, and legal advice should be sought at the earliest instance.

Please contact our friendly Gold Coast based Wills & Estate team today on 07 5563 8970 today to make an appointment to discuss your individual requirements.

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