Australia: Recognising parent and child relationships in Western Australia – part 1

Last Updated: 19 March 2015

This is part one of a two part article on the various parent and child relationships recognised in Western Australia in contested deceased estates, which will necessarily involve an analysis of:

  1. the Family Provision Act 1974 (WA) (FPA), the Administration Act 1903 (WA) (Administration Act) and the Wills Act 1970 (WA) (Wills Act);
  2. relevant case authority; and
  3. the utility of DNA evidence.

This part of the article will deal with items (a) and (b). Part two of this article, which will be released next week, will deal with (c).

The importance of this topic

The obvious stating point is this. In order to claim against a deceased person's estate you need to be related to that deceased person in one of the ways outlined in either the Administration Act 1903 (WA) (Administration Act) or the Family Provision Act 1974 (WA) (FPA).

In the context of a child making a claim against a deceased parent's estate, how would you go about proving deceased Person A is Person B's father when Person B's birth certificate is silent on paternity?

How do you go about proving deceased Person A is the father of deceased person B when Person B's birth certificate lists Person C and D as their parent?

In today's society of step families, adopted families, blended families, single parent families and same-sex families, these questions elicit some interesting legal debate about who can claim against a deceased estate.

At the conclusion of this two stage article I would like readers to have a clearer understanding of the approach the court takes and the evidence that should be presented when faced with the myriad of factual circumstances that arise in succession disputes, particularly on the issue of parentage.

Firstly, it may help to understand why this is important.

The question of whether or not a party is related to the deceased is a gateway, or jurisdictional, question. In other words, it opens the door to relief under the FPA or Administration Act.

Most people reading this article will know that over 90% of contested estates tend to settle at mediation, sometimes irrespective of whether or not the originating process and supporting material discloses a compelling case for passing the jurisdictional test. We often do not get to a point where we can see the evidence rigorously tested in court.

Similarly, we know that the overwhelming majority of disputes in this area involve emotional responses from the parties. The particular type of dispute that this article deals with has the highest of stakes – the very identification of one's relatives; one's family unit.

Picture yourself in this situation. A client comes to see you with an extremely interesting story:

  • His mum and dad were married for most of his life, certainly before his birth.
  • He has 2 older brothers.
  • His childhood was relatively normal. He had a close relationship with his parents and lived with them until he turned 19, at which stage he went overseas to do some backpacking. He had to get his birth certificate in order to obtain a passport and all the information on that birth certificate reflected his family unit – it listed his father and mother's names.
  • When he hit 30 (and at this stage he had a wife and children) his parents got divorced.
  • Eventually his mother introduced him to her new partner.
  • Your client got along with him great. So did your client's kids.
  • Over the next 3 years your client went on holidays with his mother and her new partner, including overseas trips.
  • Your client still maintained a very close relationship with his father, and caught up with him just as often.
  • Then his mother's partner passed away.
  • Before the funeral your client's mother drops a bombshell, telling him that the deceased was his biological father. She tells him that he was the product of an extra-marital relationship, but that she did not tell his father (at least, who your client thought was his father) because the deceased wasn't able to support your client's two siblings and, instead, he had suggested that she pass you off as her husband's child.
  • She tells you the extra-marital relationship continued (after a short break) and that when she and her husband finally split, it was only natural that she make her relationship with the deceased public.
  • She even told your client that the deceased had attended all of his sporting events. Whilst your client was growing up, his mother regularly sent photos of him to the deceased, and these photos were found amongst the deceased's possessions along with a newspaper clipping of your client's marriage.
  • In the space of a week your client has discovered that his brothers are only his half-brothers and, more importantly, that the man he always thought was his biological father was not. He was deprived of a full appreciation of why he found the deceased's company so engaging... and why the deceased was so keenly interested in his and his children's lives.
  • Your client is faced with the fact that he has a claim against the deceased's estate.
  • When all the documents suggest otherwise, how would you go about convincing a court that your client was, in fact, the child of the deceased?

To continue reading and download the 25 page paper, please click Recognising Parent and Child Relationships – Part 1.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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