There has been discussion in WA regarding the ability of a child to claim against their (alleged) deceased parent's estate, particularly given the availability of DNA testing.
Some practitioners maintain that the Administration Act 1903 (WA) ("the Act") entitles a person with no biological relationship to the deceased to claim against their intestate estate so long as the deceased made an "admission of parentage" during their lifetime (for ease of reference, we will refer to this alleged category of "parent" and "child" as a "Child Solely by Admission").
If this is true, it means that the Act, despite failing to provide for step children, provides for a relationship of 'parent' and 'child' that falls outside of the definitions provided for by operation of the:
- Interpretation Act 1984 (WA) (Interpretation Act);
- Artificial Conception Act 1985 (WA) (ACA);
- Adoption Act 1994 (WA) (Adoption Act);
- Surrogacy Act 2008 (WA) (Surrogacy Act); and
- Family Provision Act 1974 (WA) (FPA).
This would mean that irrespective of whether the "parent" in such a relationship may have been mistaken as to the fact of a biological relationship, the child will be entitled to claim against their intestate estate.
It is our view that the Act does not allow a Child Solely by Admission to claim against an intestate estate, or indeed for any other 'parent and child' relationship not otherwise established by operation of the above legislation.
The terms of the Act
Section 12A of the Act reads as follows:
Where, after the coming into operation of the Administration Act Amendment Act 1971, any person dies intestate ... for the purpose of determining who is entitled to participate in the distribution of ... his estate to which the intestacy applies the relationship between a child and his parents shall be determined irrespective of whether the parents are or have been married to each other, and all other relationships, whether lineal or collateral, shall be determined accordingly.
In any proceedings where a person relies on a matter of fact made relevant by the provisions of subsection (1) —
- that fact shall not be taken to be proved unless it is established to the reasonable satisfaction of the Court; and
- where the parents are not, or have not been, married ... the relationship between a child and his parent ... shall be recognized only —
i. if parentage is admitted by or established against the parent in his lifetime...
(Our emphasis added)
It is our view that there must first be a relationship of "child" and "parent". Subsection 12A(2)(a) requires that relationship to be proved to the reasonable satisfaction of the Court. The second step, contemplated by clause 12A(2)(b), only applies to "illegitimate" children. They must also prove that parentage was admitted by or established against the parent during the parent's lifetime.
The Act is silent on the definition of "child" and "parent", however most legislation is drafted on the basis of the most logical starting point – a parent and child relationship, at its most basic, is the natural/biological relationship of a mother, father and their child.
Recognised Relationships of 'Parent and Child'
For the purpose of determining who else will be considered a "parent" or "child", section 5 of the Interpretation Act 1984 (WA) provides some assistance. It defines "parent" as including the following:
- a person who is a parent within the meaning of the ACA;
- a person who is an adoptive parent under the Adoption Act; and
- a person who is a parent in a relationship of parent and child that arises because of the Surrogacy Act.
There is also a distinction between illegitimate and legitimate parent and child relationships. Western Australia has not enacted separate equality of status legislation and thus it is by virtue of individual amendments to its legislation that legitimate and illegitimate children can claim equal (or in some cases similar) rights to those children born of a marriage. It was the enactment of section 12A of the Act that ensured illegitimate children were able to claim against a deceased parent's estate upon intestacy (see The Public Trustee v Gulvin & Ors [2004] WASC 140 at paragraph 13 ("Gulvin's Case")).
There is also a place for stepchildren. Only recently were they provided for under the FPA, but only then in limited circumstances. Under the FPA a step child is defined as "a person who was alive on the date on which the deceased married or entered into a de facto relationship with a parent of the person but who is not a child of the deceased". They are only able to claim against a step parent's estate if other criteria are also established.
Since 2002 the Act, the ACA, the Adoption Act and the Interpretation Act have been amended (for example to refer to "parentage" rather than "paternity" and "parent and child" rather than "father/mother and child") so that same-sex couples may also fit the definition of "parents" of children, so long as they fit the definition (or follow the criteria specified in) the ACA, Adoption Act or Surrogacy Act (see the Acts Amendment (Lesbian and Gay Law Reform) Act 2002).
There is nothing in the legislation that suggests there is place for a Child Solely by Admission. In fact, the cases in this area appear to suggest the complete opposite.
Case law dealing with the Act
In the case of The Public Trustee as Administrator of the Estate of Jeffrey Stephen Alau v the Public Trustee of Queensland as Administrator of the Estate of Ellen Padal Pearson [2011] WASC 321 ("Alau's Case") His Honour Justice Simmonds accepts (at paragraph 28) that the use of the word "established" within section 12A means "established by legal proceedings" against the parent during their lifetime. It seems at least arguable, however, that parentage of illegitimate children could also be "established" via DNA, the Adoption Act or the Surrogacy Act during the lifetime of the deceased. If it is not so established then parentage must have been admitted by the deceased during their lifetime. In Gulvin's Case Master Sanderson confirmed, when considering this subsection, that there is a high standard of proof when it comes to proving paternity (see paragraph 10).
In Gulvin's Case there is a clear consideration of two distinct elements in the context of illegitimate children; firstly, paternity and secondly, admission during the lifetime of the deceased. At paragraph 19 Master Sanderson confirms his view that evidence of a child living as an ordinary member of a household does not assist on the issue of paternity.
In Alau's Case His Honour found that the deceased was the son of a Mr Frank Mosby, however because the deceased was illegitimate and Mr Mosby did not admit the paternity of the deceased during the deceased's lifetime, Mr Mosby could not share in his biological son's estate. His Honour clearly considered the two separate elements; biological relationship and admission during the lifetime of the deceased.
In the case of Schor v Furesh (as administrator of the intestate estate of Slipcevich) [2011] WASC 346 Master Sanderson noted that subsection 12A(2) of the Act involved two distinct and separate elements:
In this case it is necessary for the plaintiff to establish "to the reasonable satisfaction of the court" she is a child of the deceased. The DNA testing proposed would go to that end. Secondly, the plaintiff needs to establish that parentage was admitted during the lifetime of the deceased. Of course any DNA testing would not be relevant to s12A(2)(b)(i) because even if it established the deceased was a parent of the plaintiff, it was not so established during his lifetime. So the plaintiff is faced with establishing the deceased admitted parentage...
In the most recent case of Sweeney v Castle [2014] WASC 266 Master Sanderson. Counsel in that case submitted that the correct approach to section 12A requires a two stage process:
Stage one is establishing, against a parent, that a particular person was their child. If that stage is fulfilled, then stage two is establishing to the reasonable satisfaction of the Court that the person was in fact the child of the deceased.
Master Sanderson agreed with that approach, stating at paragraph 29:
With respect, I think that is the proper approach to the legislation. In many cases it may be there is no practical difference between the two stages. The legislation does not anticipate a court finding being the only way of 'establishing' during the lifetime of a person that he or she was the parent. All available evidence may suggest parentage, but then after the alleged parent's death, DNA testing may show that, in fact, there was no parent/child relationship. That would mean the first stage of the test could be satisfied but not the second. A court then would give effect to the true position.
It seems abundantly clear that the only type of "parent" and "child" who can claim pursuant to the Act are those whose relationship is established by virtue of nature itself, or by virtue of the operation of the Interpretation Act, ACA, Adoption Act or Surrogacy Act.
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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