Last updated 26 September 2018
In Queensland, the adopted children of a person are treated as if they are natural-born children of that person for the purposes of the will or the intestacy provisions. Adopted children may also be eligible to make a Family Provision application against the deceased’s estate (s 40 Succession Act 1981 (Qld) (Succession Act)).
‘Adopted child’ in this context is not restricted to children adopted in Queensland, but extends to children adopted under the laws of another state or territory of the Commonwealth or a foreign country, provided the adoption was legal according to the laws of that country (s 5 Succession Act).
Children born or adopted outside of marriage
The rights of such children are provided for in the Status of Children Act 1978 (Qld). This Act affects such children in two ways:
- when there is a will—the word ‘children’ in a will means all children of the deceased, including those born outside marriage. The deceased may specifically exclude particular children under the will, but this must be done by the use of clear words
- when there is no will—any child, irrespective of whether their parents were married, is entitled to share on an intestacy following the death of one of the parents. Any child is an entitled applicant who has standing under the Succession Act to make a Family Provision application on the death of a parent or other provider.
Stepchildren and half brothers and sisters
A stepchild is not legally the child of a deceased person. Therefore, a stepchild does not, unless the contrary intention appears in a will, receive any interest in the deceased’s estate that is left to a child. Similarly, stepchildren cannot claim against an estate on an intestacy. However, stepchildren are clearly included as eligible applicants who may make a Family Provision application under the Succession Act (see Family provision applications), provided they satisfy the criteria in s 40A of the Succession Act.
Reference merely to a brother or sister in a will generally includes a gift to a half brother or sister. Again, the answer depends on the construction of the will.
Brothers-in-law and sisters-in-law are not generally taken to be included in the expressions brothers or sisters.
Beneficiaries who lack capacity
The mere fact that a person entitled to benefit under a will or under the intestacy provisions lacks capacity, owing to either infancy or mental incapacity, is no bar to their taking a benefit. However, it can affect the actions of the person administering the estate.
For example, in the case of infancy, unless there is a contrary intention expressed in the will, the personal representative may pay the income of any property to which the infant is entitled to the infant’s parent or guardian, or otherwise apply that income for or towards the infant’s maintenance, education, advancement or benefit until the infant is entitled to receive the gift upon attaining majority or the age specified in the will.
To overcome unintended consequences of leaving a benefit to a person who lacks capacity, the testator could consider establishing a trust within their will (a testamentary trust) for the benefit of the person who lacks capacity.
When there is a will, a person divorced from the deceased is only entitled to benefit under the deceased’s will if the deceased showed a clear intention in the will to benefit the ex-spouse, notwithstanding the divorce. When there is no will, the former spouse of the deceased would not benefit from the intestacy of the deceased.
However, whether the deceased died testate or intestate, the deceased’s ex-spouse may make a Family Provision application in some circumstances. For more information on time limits and who may apply see Family provision application.