To put simply, Part 4 of the Succession Act 1981 (Qld) stipulates quite clearly that the rights of a child of a deceased to seek adequate provision from the estate of a deceased parent or stepparent, extends to a stepchild or a child adopted by the deceased.

In respect of step children, there is a separate definition under section 40A, which stipulates that a person will only be considered a stepchild of the deceased if:

• they are the child of the deceased’s spouse (here the term spouse will include a de facto relationship of 2 years or more that was still intact at the time of the deceased’s death);
• the relationship of stepchild and stepparent between the person and the deceased did not stop because of divorce between the child’s parent and the deceased.

In circumstances where the stepchild’s parent had died first but was still married to the step parent at the time of their death, then the relationship of the stepchild and stepparent did not end, even if the surviving stepparent remarried.

In a recent case in the District Court of Queensland, a decision was made in favour of a stepchild, for provision in addition to what was left in his stepfather’s will. In Hall v Ah Shay [2014] QDC199, the stepfather died in 2011 leaving an estate worth around $220,000.00, and from that he left a gift of $15,000.00 and a car to his stepson, with the balance to his natural son and no other provision for the other 2 stepchildren.

The stepchild who was left a gift applied for family provision and it was determined that he was a child for the purpose of family provision application, that he had significantly contributed to the maintenance and upkeep of the deceased’s property and that the gift that was left to him was not adequate provision. The court awarded a further $30,000.00 out of the deceased’s estate to the claimant.

This case highlights the importance of ensuring that adequate provision is made as between natural children and stepchildren, in order to avoid a challenge post death which could diminish the value of the estate.

In respect of adopted children, the legislation clearly stipulates that any child adopted by a deceased would have the same rights of family provision as a natural child.

The opposite applies in respect of children who are adopted out, as section 28 of the Adoption of Children Act has the effect of severing the relationship of natural parent and child where that child is adopted by another, except where they are adopted by the spouse of the parent.

Therefore, if a child is adopted by another, they may no longer have a right to family provision against their former parent’s deceased estate. Nevertheless, section 29A of the Adoption of Children Act sets out a framework for the delivery of a gift to a child of the deceased who has been adopted by another and that Act also provides certain protections to an executor of a deceased estate acting on that gift.

In conclusion, whilst leaving a gift to a child adopted by the deceased is a relatively straight forward arrangement, special considerations apply if a gift is to be made in a will for the benefit of a child who was put up for adoption and where the adoption severed the legal relationship of parent and child.