Adopted son challenges construction of mother’s will

Published 20 Apr 2018

Drafting a will is an important task that should be performed by an experienced lawyer who can accurately reflect an individual’s final wishes.

Even a single ambiguous word can lead to will disputes between beneficiaries and potential claimants, which is what recently occurred when an adopted son launched proceedings against his birth mother’s estate.

In her will, the woman had left the entirety of the estate to her surviving husband with the expectation that he would distribute certain assets to her “children”. At the time of her death, the woman had two children – the adopted son and a daughter whom she raised.

What was the history of the case?

The deceased gave birth to her son in 1975 and he was adopted 17 days later by a couple who raised him as their own. She later married her husband in 1980 and had a daughter two years later.

The woman’s will was written in 1998 and her reference to “children” rather than “child” created confusion over whether or not she intended for her son to receive a share of the estate.

According to District Court documents, the son received information about his birth mother in 2004 and reinitiated contact with her in 2006. However, the deceased did not update her will before she died in 2017.

Both the woman’s husband – who is also her executor – and the son agreed to settle the proceedings through a judge’s decision. Furthermore, the son said he would not pursue a family provision claim against his mother’s estate if the courts ruled the will did not refer to him.

Indeed, children who are later adopted are prevented from making family provision claims against the estate of their birth parents because of the Adoption Act. The legislation confirms that once a child is adopted, they cease to be considered a child of their birth parents in legal terms.

Did the deceased intend to include her son?

In cases such as this, wills are not taken literally; the judge must rule on what they believe the will maker intended when drafting the document.

Court of Appeal Judge Arthur Emmett said there were a number of key factors that suggested the woman did not intend to include her son, including:

  • There was no evidence of contact between mother and son at any time prior to the will’s drafting;
  • Neither the woman’s husband or daughter were aware of the son’s existence; and
  • The son was adopted very shortly after birth.

Judge Emmett therefore declared “children” in the will referred only to the woman’s daughter. The son will therefore not be able to receive any provisions from his birth mother’s estate.

However, this result should not dissuade claimants who believe they have been unfairly left out of a loved one’s will. Please contact Gerard Malouf & Partners Will Dispute Lawyers to find out whether you are eligible to pursue a family provision claim.

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