More often than not, when a person passes away either a majority of their entire estate is left to their husband, wife or de facto partner.
This can become tricky and often seem unjust if the deceased had biological or adopted children and their partner is the children’s step-parent. Children of the deceased can sometimes feel as though they have ‘missed out’ on an inheritance and issues can arise over who should be entitled to the estate. In turn, this may also raise questions about who is entitled to the stepparent’s estate once they pass away.
So, what are your rights if your biological parent’s estate was left to your stepparent and your stepparent did not make provision for you in their Will upon their death?
Can a step-parent’s Will be contested by their stepchild?
Yes. In Queensland step-children, biological children and adopted children are all treated as “a child” of a stepparent and they share the same rights to contest a Will under the provisions of the Succession Act 1981 (Qld).
Why doesn’t a person stop being a stepchild once their natural parent dies?
The relationship of a stepchild and their step‑parent does not stop simply because the stepchild’s natural parent died before the stepparent, so long as the relationship between their biological parent and stepparent was maintained at the time of death.
The relationship also remains even if the stepparent remarries after the death of the stepchild’s biological parent.
How can a stepchild go about contesting their stepparent’s Will?
A stepchild can contest their stepparent’s Will in the same manner they would any other Will for which they were eligible to do so.
A stepchild may contest their stepparents Will on the grounds that they do not believe they were adequately provided for in it, however, in general, the Court tends to believe that it is the decision of the deceased to direct their assets to whomever they choose.
If the exclusion of a stepchild from a Will means the stepchild will suffer significant financial stress, then they are able to bring a family provision application to the Court. Contesting a Will on these grounds may have more weight if the stepchild’s biological, deceased parent did not make provision for them in their Will.
What happens if the stepparent died intestate?
If the stepparent dies intestate (without a Will) an application for Letters of Administration may be brought to the Court by a person entitled to be appointed as Administrator.
Where the deceased stepparent has not remarried or entered into a new de facto relationship or civil partnership, the stepchild will be equally entitled to the residuary of the deceased stepparent’s estate as with the stepparent’s other children.
Where the deceased stepparent has remarried or entered into a new de facto relationship or civil partnership, the deceased stepparent’s new spouse will receive $150,000.00, personal chattels and a portion of the residuary and the stepchild will receive the balance of the residuary in the proportions as set out in the Succession Act 1981 (Qld). The proportion of the residuary estate that the stepchild will receive depends on the number of children of the deceased stepparent.
If you need more information about your rights to contest a will, speak to one of our lawyers in Cairns today.