Can an adopted adult contest the Will of their birth parents?

Whether an adopted adult child can contest the Will of their birth parents, will depend on the circumstances surrounding their adoption including the age they were adopted.

Under the New South Wales Adoption Act when an adoption order is made by the Court the adopted child ceases to be regarded in law as the child of the birth parents and the birth parents cease to be regarded in law as the parents of the adopted child.

If the birth parent left a Will

In New South Wales it is possible to challenge a Will of a deceased person, if you meet the definition of an ‘eligible person’ as defined in the Succession Act. An eligible person includes ‘a child of the deceased person’. An issue arises with an adopted child challenging the Will of their birth parents in that, on adoption, they ceased to be regarded in law as a child of their birth parents.

It may be possible to challenge the Will of a birth parent on another basis, being that the adopted child was, at any particular time, wholly or partly dependent on the birth parent and was, at any time, a member of the household of which the deceased was a member.

It is important to seek expert legal advice if you believe you may have grounds to challenge the Will of your birth parents. This advice will be based on the particular circumstances surrounding your adoption and whether they make you an eligible person under the Succession Act.

If the birth parent died without a Will

Under the Succession Act the rules of intestacy, which governs how a person’s assets are distributed, if they die without a Will, does not include an adopted child. If a birth parent dies without a Will, an adopted child is regarded as a child of the adoptive parents and any family relationship with the birth parents existing as a matter of biological fact are ignored.

In essence, if you have been adopted and your birth parent dies without a Will you will not be entitled to a distribution from their Estate, as you will not be regarded at law as their child.

If you are an adopted child seeking advice on whether you are legally able to challenge the Will of your birth parents, or parent then you need to speak to one of our expert lawyers. Be aware that time frames apply under the Succession Act to making a claim and challenging a Will outside of these time frames requires the leave of the Court.

If you need advice on drafting your Will, Estate Planning or how to make a Family Provision Claim or challenge a Will call Barwick Boitano today on (02) 9630 0444 or email on fjb@bblawyers.com for an appointment.

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