When it comes to making your Will, you have the freedom to distribute the assets of your estate how you see fit. You can leave your belongings (including money) to your children, friend, family member, a charity, or even on trust for your beloved dog, but one thing to keep in mind is who can or has the right to bring a family provision application (a challenge) against your estate.
Who can bring a Family Provision Application?
In Queensland, the Succession Act 1981 (Qld) (the “Act”) specifies who has the right to bring a family provision application. Eligible applicants can include your spouse, former spouse, children, adopted children, step-children or other dependants.
For the purposes of this article, the focus will be confined to step-children and other dependants.
Here is a scenario to help you understand:
John and Jane met a few years ago at a mutual friends BBQ lunch. They hit it off and commenced a relationship soon after. Jane has a 10-year old child from a previous relationship, Emma, who lives with her. As the relationship between John and Jane progressed they decided it would be easier to live together.
If Jane became John’s spouse, Emma would be considered John’s stepchild, as the child of his spouse.
Under the Act, a spouse is considered to be a husband or wife, a de facto partner or a civil partner:
- It is readily understood that if you marry under the Marriage Act 1961 (Cth), your spouse’s children become your stepchildren.
- A de facto partnership is established when two persons are living together as a couple on a “genuine domestic basis”, but who are not married to each other or related as family.[i] To determine whether two people live together a “genuine domestic basis”, the Court takes in account their circumstances, including the nature and extent of their living together, the length of the relationship, whether or not their relationship is sexual, and the degree of their mutual commitment to a shared life, the care and support of the children.
- A civil partnership is a legally recognised relationship that is entered into by any two adults, regardless of their sex, registering their relationship as a civil partnership subject to the Civil Partnerships Act 2011 (Qld). [ii]
If John and Jane became “spouses” in any of the above ways, and Jane died before John and Emma, the relationship of stepchild and step-parent between John and Emma continues, even if John became the spouse of another person after the death of Jane. However, if John and Jane were divorced or had ended their de facto or civil partnership at the time Jane died, John would no longer be a step-parent to Emma.
Under the Act, a dependant is one of the following persons, if they were being “wholly or substantially maintained or supported” by a person who dies (at the time that person dies):
- A parent of that deceased person; or
- The parent of a surviving child under the age of 18 years of that deceased person; or
- A person under the age of 18 years.
If John and Jane did not become spouses, but John provided substantial support for Emma because she was in need of it (through financial or other means) she could be considered a dependant under the Act as she is a person who is under the age of 18.
Do you have to leave anything for your partner’s children?
If you do not want to leave anything in your Will for your partner’s children, be mindful of whether their children may fall into the category of stepchild or dependant. If they do, and they have been left out of your Will, there is a risk of a family provision application being brought against your estate.
[i] Acts Interpretation Act 1954 (Qld).
[ii] Civil Partnership Act 2011 (Qld) s 4.
[iii] Succession Act 1981(Qld) s 40.