Can an adopted child contest the will of their birth parents?

Published 01 Sep 2016

Whether or not an adopted child can contest the will of their birth parents is not a simple yes or no answer. The matter is dependant on the circumstances around their adoption, such as the age at which they were adopted.

According to the New South Wales Adoption Act, when the court makes an adoption order the adopted child is no longer regarded in the eyes of the law as the child of their birth parents. The birth parents are also no longer considered the parents of the adopted child.

If the birth parent died intestate

In accordance with the Succession Act, the rules of intestacy do not address an adopted child. If a biological parent passes without a will, the child in question is considered a child of the adoptive parents. Any relationship with the biological parents is ignored.

Essentially, if you are adopted and your birth parent passes without a will, you are not entitled to receive compensation from their estate.

If the parent passed with a will

It is possible to challenge the will of a deceased person in NSW if you meet the definition of an 'eligible person' in accordance with the Succession Act. One such eligible person is 'a child of the deceased person'. The issues that comes with an adopted child challenging the will of their birth parents is that, as previously mentioned, when they are adopted they are no longer viewed as a child of their parents.

However, it could be possible to challenge the will of a birth parent. If the child was, at any time, wholly or partly dependent on the birth parent. Also, the claim is dependant on whether or not the child in question was a member of the household in which the deceased was also a member.

What if you believe you have grounds to claim?

If the occasion were to arise that you believe you have the grounds to challenge the will of your birth parents, seek the advice of legal experts. At Gerard Malouf and Partners, we have the experience and knowledge to help you with any claim you may have about a will. It is important also to be aware that time frame restrictions apply under the Succession Act.

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