The treatment of adopted children in contested estate claims

CG
Coleman Greig Lawyers

Contributor

Coleman Greig is a leading law firm in Sydney, focusing on empowering clients through legal services and value-adding initiatives. With over 95 years of experience, we cater to a wide range of clients from individuals to multinational enterprises. Our flexible work environment and commitment to innovation ensure the best service for our clients. We integrate with the community and strive for excellence in all aspects of our work.
Adopted children could claim against the estates of their adoptive parents but not those of their biological parents.
Australia Family and Matrimonial

A family provision claim is a claim that can be brought by an "eligible person" who believes that inadequate provision has been made for their proper maintenance, education and advancement in life from a deceased person's estate. It's commonly referred to as contesting someone's Will.

"Eligible persons" in s57(1)(c) of the Succession Act 2006 include the deceased's children. Whether a potential applicant is a "child" of the deceased seems obvious but what if the child is adopted?

Can an adopted child bring a family provision claim against the estates of their adoptive parents?

In this situation, the position is relatively straightforward - under s95(2) of the Adoption Act 2000, in New South Wales an adopted child is regarded in law as the child of their adoptive parents and has exactly the same rights as any child born to the adoptive parents.

On this basis, an adopted child is clearly on an equal footing with the deceased's biological children and can bring a family provision claim against the estates of their adoptive parents.

Can an adopted child bring a family provision claim against the estates of their birth parents?

Would a child be able to make a claim against the estates of their deceased biological parents even though he or she had been adopted out?

Section 95(2) of the Adoption Act provides the most assistance in determining the position. Where an adoption order is made, the adopted child ceases to be regarded by the law as a child of their birth parents, and, as such, is not an eligible person under s57(1)(c) of the Succession Act 2006 and cannot bring a family provision claim against the estate of a deceased birth parent.

There is a similar situation when someone dies without leaving a Will (known as intestacy). Under s109 of the Succession Act 2006, if the deceased died without leaving a Will, when determining who is entitled to a share of the deceased's estate, any family relationship that exists between the adopted child and its biological parent is ignored. This means that an adopted child would not be entitled to a share of their biological parents' estates upon an intestacy.

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.

Mondaq uses cookies on this website. By using our website you agree to our use of cookies as set out in our Privacy Policy.

Learn More