A Child of the Deceased is Eligible to Contest their Parent's Will. However, the Succession Act does not define 'Child of the Deceased', thus, raising questions about who a Child of the Deceased is for the Purposes of Family Provision.

Family Provision & Children of the Deceased

Under section 57(1)(c) of the Succession Act a child of the deceased is eligible to contest their Parent's will. Generally, whether or not a family provision applicant is a child of the deceased is self-evident. However, shifting family structures and the rise of blended families raises questions about the status of stepchildren, adopted children, foster children, and illegitimate or ex-nuptial children in the Family Provision regime.

Can Stepchildren Contest a Will?

In NSW, stepchildren are not expressly identified in the legislation as eligible persons to make a family provision claim. However, stepchildren may be eligible to challenge a will if they were a member of the deceased’s household, wholly or partly dependent on the deceased at any particular time, and there are factors warranting the making of an application. Consequently, whether a stepchild can contest a will depends on the circumstances of the case, including:

  • The relationship between the stepchild and the deceased.
  • The extent of any support, financial or otherwise, received by the stepchild from the deceased.
  • The age at which the stepchild became a member of the family.

Can Illegitimate Children or Ex-Nuptial Children Contest a Will?

Since the introduction of the Status of Children Act, there is no distinction at law between a child whose parents were married and those whose parents were not. This principle is echoed in section 57(2) of the Succession Act, which notes that a child of the deceased includes a child of a de facto relationship. Effectively, where a person is a biological child of the deceased, they will be eligible to contest the deceased’s will regardless of the relationship between their parents.

Can Adopted Children Challenge Their Parents' Will?

Pursuant to section 95 of the Adoption Act, adopted children are regarded as children of their adoptive parents, and they have the same rights with regard to their adoptive parents as if they were biological children. Therefore, adopted children can challenge their adoptive parent’s will.

However, adopted children may not be eligible to challenge their biological parents' will, as adopted children cease to be children of their biological parents. Consequently, unless they fall under one of the other categories of eligible persons, adopted children cannot contest their biological parent’s will.

Can a Foster Child Make a Family Provision Claim?

Foster children are not considered to be children of their foster parents. However, like stepchildren, foster children may be eligible to make a family provision claim on their foster parent's estates as a member of the deceased’s household who was wholly or partly dependent on the deceased.

Although unlike a child of the deceased, a foster child will be required to show that there are factors warranting their family provision application. That is, they must show that, given the circumstances, they should be regarded as a natural object of testamentary recognition.

DISCLAIMER: The information provided above is published for general informational purposes only and is not intended to be nor should it be relied upon as a substitute for legal or other advice.