The Treatment of Adopted Children in Contested Estate Claims

Louisa Daniels

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.

If you would like to know more about your rights to bring a family provision claim, please contact our estate planning and succession team:

Louisa Daniels, Lawyer 
Phone: 02 9895 9238
Email: ldaniels@colemangreig.com.au

For more information on Estate Planning please view our Plain English Guide:

Plain English Guide to Estate Planning