When an executor sees an adoption order on the file, the eligibility question usually looks closed. Lise v Boulton [2026] QSC 176 is the case where it was not, and the reason is a discharge order the applicant obtained in Western Australia more than eight months after her biological father died. Once that order was made, the law had to treat the adoption as though it had never happened.
That conclusion is powerful, but it is not a shortcut to provision. Treston J decided a separate question about eligibility and refused to terminate the family provision proceeding summarily. Her Honour did not decide parentage, adequate provision or the applicant’s ultimate claim. In my view, the decision is convincing on its precise point. Its language about retrospective effect should nevertheless be kept within the statutory savings for accrued and vested rights.
The discharge altered status at the date of death
The applicant was born in Western Australia in 1966 and adopted shortly before her first birthday. She located the deceased in 1989 and told him that she understood he was her biological father. They met in about 1990 after telephone calls, and he arranged and paid for DNA testing. The deceased later drove her bridal car, sat at the parents’ table at her wedding and, on her evidence, remained in regular contact for almost 40 years.
The deceased died on 28 January 2025, leaving a Queensland estate. His will gave the applicant $50,000. She applied in Western Australia to discharge the adoption order on 10 October 2025 and obtained the order five days later. On 23 October 2025 she commenced the family provision proceeding. A separate parentage proceeding followed on 20 February 2026.
The question put to Treston J was conditional. If the Court declared under Status of Children Act 1978 (Qld) ss 8 and 10 that the applicant was the deceased’s biological child, would she be eligible under Succession Act 1981 (Qld) ss 40 and 41? Her Honour answered yes. The discharge meant that, as a matter of law, the applicant had never ceased to be the deceased’s child, including at the date of death: Lise v Boulton [2026] QSC 176 at [27], [50].
The executor’s summary judgment application was also dismissed. That ruling was deliberately narrower. The claim was arguable, not established.
The words “as if” did the work
An adoption order under Adoption Act 1994 (WA) s 75 ordinarily replaces the legal parent-child relationship with the birth parents by one with the adoptive parents. The critical provision was s 77(6). After discharge, rights, duties, liabilities and relationships under Western Australian law are to be as if the adoption order had not been made.
The executor argued that eligibility had to be fixed by the facts as they stood at death, when the adoption remained on foot. Treston J rejected that construction because it did not give effect to the statutory counterfactual. The provision does not merely restore status from the date of discharge. It requires the adoption to be treated as never having occurred: [23] to [27].
The executor relied on Coates v National Trustees Executors and Agency Co Ltd [1956] HCA 23; (1956) 95 CLR 494 for the assessment of a family provision claim at death. Her Honour accepted that those principles address the jurisdictional assessment at death, but held that they do not answer the anterior question of eligibility: [28] to [31]. That distinction is the centre of the case. The date-of-death inquiry remains. The discharge changes the legal status brought to that inquiry.
This was not a casual undoing of an adoption. Under Adoption Act 1994 (WA) s 77(2), discharge requires fraud, duress or other improper means, an ineffective consent of the specified kind, or some exceptional reason. The Court also cited ESA v Department of Child Safety, Youth and Women [2019] QSC 234, where discharge was described as a “grave step” that dismantles a family unit in law: [48]. The decision should not be presented as suggesting that discharge is an estate-planning device.
Queensland recognised the Western Australian discharge
The executor’s second argument was that the Western Australian provision affected status only under Western Australian law. The Court rejected that too. Adoption Act 2009 (Qld) s 291 gives a qualifying interstate adoption the same effect as a Queensland adoption, but only while it has not been rescinded under the law of the originating State. Once the Western Australian order was validly discharged, there was no subsisting interstate adoption for Queensland law to recognise: [33] to [37].
Two Queensland provisions reinforced that construction. Section 226 of the Adoption Act 2009 (Qld) describes the effect of a Queensland discharge in materially similar terms. Section 12 of the Births, Deaths and Marriages Registration Act 2023 (Qld) recognises a corresponding final adoption discharge order from another Australian jurisdiction as a relevant event for registration purposes: [38] to [44].
The Court also found support in Re Gordon (a pseudonym) (No 2) [2020] NSWSC 673. The adopted person and biological parents are restored, between themselves, to the position existing immediately before adoption. That reasoning supported the statutory conclusion; it was not needed to displace the Queensland recognition provisions.
The timetable still has three moving parts
Practitioners should separate two limitation periods and a vesting cut-off.
First, Succession Act 1981 (Qld) s 41(8) provides that a family provision proceeding must be instituted within nine months after death unless the Court otherwise directs. On the agreed chronology, this proceeding began five days before the nine-month anniversary. The later parentage proceeding did not replace the need to commence the provision claim in time.
Second, Status of Children Act 1978 (Qld) s 8(3) treats a post-death parentage declaration as made immediately before death only where the application was made before death, within six months after death, or within further time allowed by the Court. Read the opening words of that subsection. The deeming runs for the purposes of s 8(2) alone, so it governs what a declaration can disturb, not whether the applicant gets through the door. Section 41(9) of the Succession Act 1981 (Qld) permits an application by a person whose entitlement depends on a paternity declaration, but the provision proceeding cannot continue until the declaration is obtained.
The parentage proceeding recorded in Lise began more than six months after death. The judgment does not say whether further time under s 8(3) had been sought or allowed. More importantly, the separate question assumed that a declaration would be made. It did not decide that it would be, or that every statutory condition for its retrospective treatment had been met.
Third, Status of Children Act 1978 (Qld) s 8(2) protects property to which a person became absolutely entitled before the relevant recognition of paternity. That protection makes the distribution history material. A timely family provision proceeding, a parentage application and a discharge order answer different questions. A file audit must track each one.
Eligibility survived, but entitlement remains for trial
The Court’s treatment of summary judgment is easy to overread. Summary termination is exercised sparingly. Under General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, the case must be so clearly untenable that it could not possibly succeed. Treston J held that this claim was not in that category: [51] to [58].
The deceased’s own will weakened the executor’s submission that no wise and just testator could have made provision. He had left the applicant $50,000. There was also evidence capable of supporting need and some closeness. He drove her bridal car. She contacted him for Father’s Day, Christmas and his birthday. Those matters made a trial necessary, but they did not resolve it: [57] to [65].
At trial, the Court must still consider whether the testamentary provision was adequate against the estate, the applicant’s needs and the needs and moral claims of the other surviving adult children. Treston J expressly left the asserted moral obligation to the trial judge. The judgment also records that the executor did not concede biological paternity outside these applications: [7] n 1, [64].
I would confine the statement that discharge operates “for all times and all purposes” to legal status, subject to express savings. Section 77(7) of the Adoption Act 1994 (WA) preserves things lawfully done and proprietary interests vested while the adoption operated. Section 226(2) of the Adoption Act 2009 (Qld) likewise preserves lawful acts and accrued rights and liabilities. Together with the vesting rule in s 8(2), those provisions resist any broader proposition that discharge rewrites every legal consequence of the past.
For a probate or estate administration file, check the originating jurisdiction, the precise discharge order, the parentage pathway, both filing dates and whether estate property has vested or been distributed. The current Queensland succession legislation should be read against that chronology. The safe proposition from Lise is narrow: a valid interstate discharge can retrospectively restore the status needed for eligibility, but it does not itself establish parentage or provision.
Published 6 August 2026.
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