Business during COVID 19 - see here for more details

Can your de facto’s children claim against your estate?

Like many Australian children these days, Johnny was brought up in what is commonly referred to as ‘a blended family.’

His mother Jean met his stepfather Peter after each of them had been divorced from their previous spouses.

Jean and Peter lived together happily for many years, never formally marrying.

After Jean dies, Peter continues to raise Johnny as his son.  They have a very close relationship.

Jean had another, older, son, who stayed with his father when he and Jean divorced, but Peter has never had any meaningful contact with him.

Peter had a biological son from his previous marriage, but they have had no significant contact with each other since his divorce, and Peter did not wish him to benefit from his estate.

Johnny is now independent, having finished his studies, and is in full-time employment – i.e. not financially dependent on Peter.

Peter dies, leaving only the will he made before he was divorced!

Although he thought on numerous occasions about making a new will, both before and after Jean died, Peter’s will left everything to his wife (from whom he is now divorced, and then to his (biological) son!)

Where does that leave Johnny - whom it is clear Peter wished to benefit, having for many years treated him as his son?

Where does that leave Peter’s biological son, who he has not seen or had any contact with for 15 years?

What about Johnny’s older brother – Jean’s eldest son?

Since amendments to the Queensland Succession Act effective from 5/6/2017, is now clear that the meaning of ‘stepchild’ includes the child of a party to a de facto relationship. 

This means that a step child to a de facto relationship is eligible to make a claim against the estate of their step parent, but only if their step parent and natural parent were in a relationship when either of them die.

Prior to this amendment, the question of whether a stepchild of a de facto relationship could make a claim against the estate of the step-parent was not entirely clear.

What does this mean for Johnny?

The good news is that the effect of Peter’s divorce means that his ex-wife will not benefit from his estate  - but that still leaves his biological son as the sole beneficiary named in his will.

However, as Peter and Jean were in a relationship when Jean died, this means that Johnny can make a claim against his step father’s estate - but it also means that Jean’s oldest son (who is also a step son of Peter) is entitled to claim against Peter’s estate too!

Had the situation been different, and had Jean ended her de facto relationship with Peter, prior to her death, Johnny would not have been entitled to make a claim against Peter’s estate, no matter how good the relationship they had.

We live in a time of increasingly complex blended families, making it more important than ever that we give consideration to who we wish to benefit from our estate in the event of our death.

Your will needs to be updated each time there is a significant change in your affairs, either financially or in your personal relationships.

We have particular practical experience and expertise in this area of law, and can assist you to achieve the outcome you desire, but emphasise the importance of planning ahead of time -  and not leaving matters until it is too late.

If you or someone you know wants more information or needs help or advice, please contact us on (07) 5443 4866 or email kwaddington@gwlaw.com.au.

If you need help, or have a question get in touch with us today.