With the increased number of blended families in our society, the question of who is an “eligible person” particularly with respect of children, stepchildren and adopted children to have a family provision claim out of the estate of the deceased becomes more complex.
An “eligible person” who is of the view that adequate provision was not make for his or her proper maintenance, education and advancement in life from a deceased person’s estate, may bring a ‘Family Provision’ claim in NSW.
Section 57(1)(c) of the Succession Act 2006 defines children of the deceased to be included in the category of “eligible persons”.
Who are the Children?
The status of illegitimacy has now been abolished. The legislation in respect of succession also overturns the general rule that the descriptions of relationships in the construction of a will must be legitimate.
The Succession Act refers to the eligibility of the children of the deceased.
However the law in certain circumstances recognises a stepchild or an adopted child to fall within the definition of a “child” who can be a potential claimant in a Family Provision Claim against the deceased’s parent’s estate.
The general effect of an adoption order in Australia is that the legal relationship between the birth parent and the adopted child is severed.
In NSW, s95(2) of the Adoption Act 2000 provides that once an adoption order is made the adopted child ceases to be regarded the child of the birth parent and accordingly is not an eligible person under s57(1)(c) of the Succession Act 2006 to bring a family provision claim against the estate of the deceased.
However, there are some exceptional cases where an adopted child could contest the estate of the birth parent’s, particularly if the adopted child continued a relationship with the deceased birth parent, relied on the deceased birth parent for financial support or the adoption occurred several years after the birth of the adopted child.
Birth parents may also choose to list the biological child who is later adopted to be noted in their wills as a beneficiary. It is recommended that in such circumstances the Will clearly states who is the adopted child, how the adopted child can be located and what he or she is exactly entitled to under the terms of the will.
The opposite applies in respect of the adopted parent. The legislation clearly stipulates that any child adopted by the deceased adopted parent would be considered as the child of the deceased adopted parent and therefore the adopted child would have the same rights of family provision as a biological child.
In terms of distribution on an intestacy s109 of the Succession Act 2006 provides that an adopted child is to be regarded the child of the adoptive parent or parents in circumstances that firstly the child’s family relationships are to be determined accordingly and secondly the Act ignores family relationships that exist as a matter of biological fact rather than on the basis of a relationship created by adoption.
Legislation in different states in respect of the stepchild’s rights to make a family provision claim varies.
The legislation in Western Australia and Queensland directly stipulates that the rights of a child of a deceased to seek family provision claim also extends to the stepchild or a child adopted by the deceased.
In Western Australia, section 4 of the Family Provision Act 1972 defines a stepchild to be a person who is not the child of the deceased but the child of the deceased’s spouse or de facto partner who was alive on the date on which the deceased married or entered into a de facto relationship with the parent of that person.
The stepchild can make a claim under Western Australia’s legislation if the stepchild was being maintained by the deceased immediately before the deceased’s death. The legislation even protects the stepchild whose parent left the estate to the spouse or de facto, and that spouse or de facto in turn left his or her estate to his or her own biological children (and not to the stepchild).
In Queensland, legislation defines a person to be a stepchild of the deceased only if:
- the person is the child of the deceased’s spouse or de facto provided that the relationship lasted minimum of 2 years immediately before the deceased’s death;
- the relationship between the stepchild and the deceased remained intact even in case of divorce between the deceased and the stepchild’s parent.
Despite the diversity of legislation in different states, generally if the stepchild was being maintained wholly or partially by the deceased prior to the deceased’s death or otherwise significantly contributed to the maintenance or upkeep of the deceased’s property, the stepchild would be eligible to make a family provision claim.
The general status of the stepchild depends on a number of factors including the continued marriage between the stepchild’s natural parent and the step-parent. In so far that the family provision legislation stipulates, if the step-parent dies prior to the natural parent, the status of the applicant in a family provision claim will be decided at the time of the deceased’s death.
If the marriage of the step-parent and the natural parent breaks or the natural parent dies prior to the step-parent, the relationship between the step-child and the parent may cease and therefore the step-child may not be able to make a family provision claim out of the estate of the deceased step-parent. Further upon demise of the natural person and in circumstances, it could be
For the purposes of construction of a will, problems could occur when a will is drafted to leave a gift to a step-child.
In Warton v Yeo  NSWSC 494 the testator drafted his will in a way that distinguished between his sister’s natural child and her step-children.
Upon the testator’s death, the step-children brought a family provision action against the estate of the deceased claiming that they were “children” of the sister and hence beneficiaries to the testator’s estate. In this case, the testator’s intentional wording of the will, distinguishing between “child” and “step-children”, was held to convey the intention of the testator.
Therefore, on a factual basis the drafting of the will could clarify the intention of the will by distinguishing between a step-child and a child.
Accordingly it is crucial during the estate planning process to consider allocating adequate provision to an eligible stepchild or adopted child. In blended families if adequate provision has not been considered for a stepchild or an adopted child who is eligible for a claim, the Court has the discretion to reallocate the gift to the stepchild or adopted child in case they bring a family provision claim against the estate of the deceased.
Family Lawyers Sydney at Pavuk Legal can advise you in respect of whether you may want to benefit or exclude adopted children or stepchildren in your will, any Family Provision Claim you are eligible to make or assist you where a claim has been made against a deceased’s estate.
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