Lise v Boulton [2026] QSC 176 considers whether the discharge of an adoption order restores eligibility to claim family provision from a biological parent’s estate.
Eligibility is a threshold requirement in family provision proceedings. Most disputes concern the status of a spouse, de facto partner, or dependant. The impact of historic adoption orders on eligibility is uncommon.
Treston J examined whether a person adopted as an infant, whose adoption was discharged after the biological father’s death, could apply for family provision against the estate. The decision analyses the interaction between adoption legislation, declarations of parentage, and succession law, and distinguishes eligibility to apply from the merits of the claim.
The Facts
The applicant was born in Western Australia in 1966 and was adopted before her first birthday. Under the adoption legislation then in force, the legal relationship between the applicant and her biological parents ceased, and her adoptive parents were considered her legal parents.
The applicant subsequently re-established contact with her biological father. DNA testing confirmed paternity, and a close relationship continued for nearly forty years. The deceased maintained regular contact, attended the applicant’s wedding, and included a legacy of $50,000 in his 2022 Will.
The deceased died in January 2025, leaving an estate worth approximately $1.5 million.
Following the deceased’s death, the applicant applied to the Family Court of Western Australia for discharge of the adoption order.
Section 77 of the Adoption Act 1994 (WA) provides that adoptees over the age of 18 years can seek a discharge of their adoption order from the Family Court of Western Australia in circumstances where:
- The adoption order was obtained by fraud, duress, or other improper means;
- The consent relied on to make the adoption order was not effective consent because it was obtained by
- fraud,
- duress,
- material inducement; or
- There is an exceptional reason to discharge the adoption.
Eligibility to apply to discharge an adoption order
Under the Adoption Act 1994, people who can apply to have an adoption order discharged include:
- An adult adopted person over the age of 18 years who has notified the Director General of the Department of Communities (Communities) of their intention to apply.
- The Attorney General.
- The Director General, Communities.
The Family Court cannot make an order to discharge an adoption order:
- If doing so would not be for the person’s welfare and in their best interests; and
- Unless satisfied that reasonable efforts have been made to notify all parties to the adoption relevant to the application.
Discharge of an adoption order removes its legal effect. The person is no longer legally connected to the adoptive parents and is reconnected to the birth parents and family.
Family Provision Application
After the discharge of the adoption order, the applicant commenced proceedings seeking further provision from the estate.
Preliminary Question:
Treston J first determined whether the applicant was eligible to bring a claim before considering the adequacy of provision. The executor submitted that eligibility for family provision is assessed at the date of death. As the adoption order remained in force at that time, the applicant was not legally the deceased’s child and therefore did not fall within the definition of an eligible applicant under the Succession Act 1981 (Qld).
The applicant submitted that the discharge order had the effect of treating the adoption as if it had not occurred.
The Court’s Decision
Treston J accepted the applicant’s argument. Central to the decision was section 77(6) of the Adoption Act 1994 (WA), which provides that following the discharge of an adoption order, the rights, duties and legal relationships of the parties are to be treated
“as if the adoption order had not been made.
Her Honour considered the statutory language to be clear and unambiguous.
The discharge order operated retrospectively, restoring the legal relationship between the applicant and her biological father for all purposes, subject to statutory exceptions. The adoption was treated as if it had not taken place.
Following discharge of the adoption order, the applicant met the statutory definition of ”’child”’ under the Succession Act 1981 (Qld).
Recognition Across State Borders
The executor further argued that the Western Australian discharge order could only affect legal relationships within Western Australia and not determine succession rights under Queensland legislation.
Treston J rejected that submission.
Queensland legislation recognises interstate adoption orders and their discharge. Equivalent provisions exist in other Australian jurisdictions, but the approach is not uniform.
In New South Wales, for example, the Court may only order a discharge for exceptional reasons, with a strong emphasis on the finality of adoption.
In Victoria, discharge provisions are strictly limited to specific grounds and may involve more complex procedural requirements.
Some states, including South Australia and Tasmania, impose additional notice requirements or require leave of the Court before an application can proceed.
In the Northern Territory and ACT, time limits and standing to apply may differ.
These variations can affect both the process of discharging an adoption and the recognition of such orders for family provision purposes.
Reviewing the relevant legislation and procedural rules in each jurisdiction to identify any exceptions, notice requirements, or procedural differences that may arise.
Re Gordon (a pseudonym) (No 2) [2020] NSWSC 673
In Re Gordon (a pseudonym) (No 2); Gordon (the applicant) born and adopted in 1965, applied in 2018 to discharge the adoption order to prosecute an application for further family provision from his birth father’s estate pursuant to the Adoption Act 2000, s 93(4), which provides that the Court may make a discharge order if it is satisfied that
- (a) the adoption order, or any consent to adoption, was obtained by fraud, duress, or other improper means; or
- (b) there is some other exceptional reason why the adoption order should be discharged.
The applicant relied on the existence of exceptional circumstances. Hallen J observed, based on earlier decisions, that mistreatment by the adoptive parent of the adopted child may amount to exceptional circumstances (at [221]); a serious mistake in a welfare report (at [223]); a material misrepresentation that the adoptive parents were fit and proper to be in a parental role to the adopted child; or the adoptive relationship has undergone a significant and irretrievable breakdown in the adopted relationship (at [228]).
However, Hallen J observed that
‘‘'[t]here are sound public policy reasons why adoption orders ought not easily be et aside. Indeed, public policy considerations ordinarily militate against revoking an adoption order that has been properly made… [A]n adoption order, when made, is meant to be final and establishes legal rights which have significance beyond just those of the adopted person’’’ (at [230]).
His Honour held
‘‘'[t]he treatment by [the adoptive parent], NAP deposed to by the applicant, falls well short of the kinds of physical and sexual abuse which have been accepted in other cases as exceptional reasons to discharge an adoption order… At its highest, it seems to me to demonstrate no more than commonplace human failing or inadequacy and a deficiency in parental character’’’ (at [269])… ‘There is no evidence that, almost 20 years after NAP’s death, a discharge order would ameliorate any remaining effects of the treatment that the applicant asserted that he suffered at her hands’’’ (at [271]).
Hallen J felt that
‘‘’the opposition by the executors of the estate of the deceased, all of whom are members of the deceased’s immediate family, suggests that the relationship which the applicant has with his biological relatives is unlikely to improve’’’ (at [272]).
Additionally, the applicant received a benefit following the death of their adoptive parent. So, even if exceptional circumstances were established, His Honour would refuse the application as a matter of discretion:
‘‘’Having received that benefit, the applicant should not be granted a discharge of the adoption order that founded the relationship which gave rise to that benefit’’’ (at [275]).
In Re W (a Child)[2010] EWCA Civ 1535, Thorpe L.J. (Munby L.J and Coleridge J agreeing) observed that
“the consequence of setting aside an adoption order seems to me self-evidently a reversion in law to the status quo ante…”.
Hallen J followed that in Re Gordon (a pseudonym) (No 2) [2020] NSWSC 673; remarking (at [208]) that, were the discharge order made, then the applicant and his biological parents, in that case:
“[would be] deemed, for all purposes, to be restored to the same position, inter se, as existed immediately before the order of adoption was made.”
Summary Judgment Refused
Summary judgment is where a court decides a case without requiring the parties to proceed to a full trial. A defendant can apply if they believe the plaintiff’s claim has no merit or is unlikely to succeed. It usually arises where there is no dispute over the key facts, only over how the law might apply to those facts. This allows the case to be resolved quickly without a full hearing. If a defendant’s application is successful, the Court may dismiss the plaintiff’s claim.
An application for summary judgment is brought under either r 171 or r 367 of the UCPR, or in the Court’s inherent jurisdiction. The discretion to enter summary judgment, as it arises in the Court’s inherent jurisdiction, is to be exercised sparingly because
“the exercise of powers to summarily terminate proceedings… must always be attended with caution”. Spencer v The Commonwealth (2010) 241 CLR 118, 131 [24] (French CJ and Gummow J), [55] (Hayne, Crennan, Kiefel and Bell JJ); Mio Art Pty Ltd v BMD Holdings Pty Ltd & Ors [2014] QSC 55, [127] (Jackson J).
The jurisdiction is invoked in those cases where
“the case of the plaintiff [or defendant as the case may be] is so clearly untenable it could not possibly succeed” General Steel Industries v Commissioner for Railways (NSW) (1964) 112 CLR 125, 129 (Barwick CJ).
In Lise v Boulton, after determining eligibility, Treston J considered the executor’s application for summary judgment.
The executor submitted that no reasonable family provision claim could succeed because the deceased could not have anticipated the subsequent discharge of the adoption. It was argued that, at the date of death, the deceased had no legal or moral obligation to provide further for a person who was not legally his child.
Her Honour refused to strike out the proceedings.
The deceased’s Will recognised the applicant, leaving a legacy of $50,000. Whether this constituted adequate provision required consideration of the usual family provision factors, including:
- the size of the estate;
- the applicant’s financial circumstances;
- the competing claims of other beneficiaries; and
- the nature and quality of the relationship between the applicant and the deceased.
These matters required determination at trial and were not suitable for summary determination.
Significance of the Decision
Cases where adopted children seek to challenge estates of biological parents following discharge of an adoption order are rare. When they arise, they present significant issues for succession practitioners. Establishing that an applicant falls within the statutory class of eligible persons does not determine whether further provision should be ordered. It enables the Court to consider the merits of the application.
For example, an adopted adult who has reconnected with a biological parent may, after the parent’s death, apply to discharge the adoption order in another state and then seek family provision from the estate in Queensland. If the discharge restores the applicant’s status as a legal child, eligibility to apply for provision is established. However, eligibility alone does not determine the outcome. The Court will then consider factors such as the extent of the relationship with the deceased, provision already made in the Will, the applicant’s financial needs, and the competing claims of other beneficiaries before deciding whether further provision is warranted.
A discharge order under adoption legislation may have effects extending beyond family law, including succession law, inheritance rights, and estate administration.
The decision illustrates the need to consider succession legislation alongside related statutory regimes. Entitlement to an estate may be determined by succession legislation as well as by legislation governing parentage, adoption, marriage, and legal status.
Lessons for Estate Planning
The case demonstrates that biological relationships, legal parentage, and testamentary intentions may not always align. Where adoptees have re-established relationships with biological family members, practitioners should consider whether testamentary intentions are clearly expressed and whether any future change in legal status could affect estate administration.
Practitioners address potential complications by:
- Including clear definitions of family members and beneficiaries in the Will, specifying the testator’s intentions regarding both biological and adoptive relationships.
- Regularly reviewing wills with clients who have a history of adoption or reconnection with biological family, especially after changes in legal status, such as a discharge of an adoption order.
- Advising clients to document their reasons for distributions in a statement of wishes or similar document, particularly where relationships with former adoptive or biological children might give rise to disputes.
- Considering the use of conditional gifts or explicit exclusions to clarify the testator’s intentions in the event of a legal change in parentage status.
- Ensuring any changes or revocations of adoption or parental status are flagged as review triggers for estate plan updates
Proactive consideration of changing legal relationships can assist in minimising uncertainty and reducing the risk of future family provision disputes.
Lise v Boulton [2026] QSC 176 confirms that assumptions about family relationships alone do not resolve eligibility questions. The interaction between adoption legislation and succession law may alter who is entitled to invoke the Court’s family provision jurisdiction.
Practical Checklist for Practitioners Facing Eligibility Issues:
- Obtain all relevant adoption orders, discharge orders, and supporting court documentation.
- Collect parentage declarations, birth certificates, and results of DNA tests to establish legal and biological relationships.
- Identify and analyse the legislation in both the jurisdiction of the adoption and the estate (for example, Queensland and Western Australia).
- Clarify the timing and legal effect of any adoption or discharge orders, with specific reference to the date of death and any retrospective operation.
- Investigate and address any conflict of laws or interstate recognition issues that may arise.
- Notify relevant parties and obtain evidence of notice in line with statutory procedural requirements.
- Review the Will, other testamentary documents, and any statements of wishes or correspondence regarding the testator’s intentions.
- Document findings and prepare supporting evidence for any anticipated eligibility challenge at an early stage.
Early investigation of these matters can help avoid procedural setbacks and support an effective litigation strategy.
Lise v Boulton [2026] QSC 176demonstrates that the question of who qualifies as a child for succession purposes may involve complex legal considerations.