Supreme Court of Queensland – Trial Division | Treston J
Hemmant’s List member Katrina Kluss appeared with C L Boddice for the applicant. Fellow List member Caite Brewer appeared for the respondent executor.
Lise v Boulton concerned whether a biological daughter who had been adopted as a child, but whose adoption order was discharged after her biological father’s death, was eligible to bring a family provision claim under the Succession Act 1981 (Qld).
The applicant was adopted in Western Australia in 1967. She later re-established contact with her biological father and maintained a relationship with him for many years. When he died in 2025, his will left her $50,000 from an estate worth approximately $1.52 million.
After his death, the applicant successfully obtained an order in Western Australia discharging her adoption. She then commenced proceedings in Queensland seeking further provision from the estate.
The respondent executor sought to strike out the application for provision on the basis that eligibility for family provision should be determined as at the date of death, when the adoption order was still in force, such that the applicant was not a “child” of the deceased.
The applicant contended she was eligible to apply for provision because the wording of the relevant legislation meant that the discharge of the adoption order had effect ab initio. The applicant filed an application under ss 8 and 10 of the Status of Children Act 1978 for a declaration that the applicant was the deceased’s child to establish her eligibility to apply for provision.
In the interests of minimising costs and avoiding two separate contested applications, the parties sought for a separate question to be determined:
“If, pursuant to ss 8 and 10 of the Status of Children Act 1978, the Court declared that [the applicant] is the biological child of the [deceased] would the applicant be eligible to apply for provision from the deceased’s estate pursuant to ss 40 and 41 of the Succession Act 1981?
Treston J held that the effect of s 77(6) of the Adoption Act 1994 (WA) was retrospective: once discharged, the adoption was to be treated as if it had never occurred. Queensland law recognised the effect of that interstate discharge.
Accordingly, if the applicant obtained a declaration that she was the deceased’s biological child, she would be eligible to pursue a family provision claim.
The Court also refused the executor’s application for summary judgment.
Significance
The decision provides important guidance on the interaction between adoption law and succession law, particularly where an adoption order is discharged after death. It also distinguishes between eligibility to bring a family provision claim and the separate question of whether the provision made by the deceased was adequate.