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Family Provision Applications and Children of De Facto Partners

A recent Queensland case looks to be the first to use new legislation to bring a family provision application by using the extended definition of ‘stepchild’ as a person eligible to make an application.

The Tatay Application

Four days before Christmas, Ms Suzzen Tatay filed a family provision application in the Brisbane Supreme Court to make a claim on the estate of Gold Coast millionaire philanthropist, Mrs Win Schubert. Mrs Schubert’s Will, which divided an estate of approximately $30 million, bequeathed $20 million to the Queensland Art Gallery Board of Trustees and the remainder to ten relatives and friends, who did not include Ms Tatay.

Ms Tatay claims that, as the child of Mrs Schubert’s alleged de facto partner of almost 40 years (the late Agnes Tatay, who predeceased Mrs Schubert by two years), she is entitled to contest Mrs Schubert’s Will as a stepchild.

The New Legislation

Under the Succession Act 1981 (Qld) (‘the Succession Act’), the people eligible to make a family provision application are the deceased’s spouse, child, stepchild or adopted child or dependant (a dependant being someone who was wholly or substantially being supported or maintained by the deceased at the time of death who is either a parent of the deceased, a parent of a child of the deceased who is under 18 or a person under the age of 18 years).

Prior to the amendment provided by section 257 of the Court and Civil Litigation Amendment Act 2017 (Qld) (‘the CCLAA’), section 40A provided that a stepchild was a child of the spouse of the deceased. Section 40A further provided that the step-relationship would cease due to the divorce of the deceased and the stepchild’s parent, but not the death of the stepchild’s parent or the deceased’s remarriage after the death of the stepchild’s parent – essentially that the step-relationship would endure if the deceased’s marriage to the parent had only ended due to the parent’s death. The law made it clear that the definition of a stepchild when relating to family provision applications was a traditional one, reliant on the marriage of the deceased and the stepchild’s natural parent.

The amendment provided by the CCLAA has since opened the section 40A definition of stepchild to also include children of civil and de facto partners, with the proviso that the relationship between the deceased and the child’s natural parent only ends due to the death of the parent.

Commencement of the amendment?

What is not made immediately clear by the amendment is at what point of a claim the new definition applies to family provision claims. Can it be said to apply to family provision claims that have arisen on or after the date of commencement of the amendment (5 June 2017), or does the new definition only apply to claims on deaths that have occurred on or after the commencement date?

In answering this question, section 4 of the Succession Act can be turned to for guidance. Section 4 states that the Succession Act applies in the case of deaths occurring after the commencement of the Act. As the new amendments is a part of the Act, it could be perhaps assumed that the new amendment applies to all deaths after 1981 – this is certainly what section 22 of the Acts Interpretation Act 1954 (Qld) (‘the AIA’) seems to suggest when it states that an Act and all amending Acts are to be read as one. Yet, section 15C(2)(c) of the AIA provides that a reference in an Act to the commencement of the Act is a reference to the commencement of the relevant provision.

On the face of this, it appears that the new definitions apply to deaths (not claims) occurring after 5 June 2017.

In regards to the Tatay matter, this may mean that Ms Tatay’s application as a stepchild of a de facto relationship is in jeopardy, as Mrs Schubert died in April 2017 several months prior to the commencement of the new amendments.

Conclusion – Family Provision Applications and Children of De Facto Partners

The new amendments to the Succession Act illustrate society’s changed attitudes towards de facto relationships and the rights that they entitle, although they do raise further questions as to the logistics of applying these new rights. Despite the potential challenges to Ms Tatay’s claim, her application and the Court’s treatment of it will certainly provide answers as to the new state of affairs in succession law in Queensland.

This publication is for information only and is not legal advice. For legal advice about succession planning and potential family provision claims, contact Bell Legal Group’s estate planning team on 07 5597 3366 or send an email to law@belllegal.com.au