Wills commonly make provisions for children without specifying who is a child. This may seem to be an obvious answer but legally there are different implications for ex-nuptial children, adopted children, and step-children.
Children born outside of marriage (also known as ex-nuptial children) have the same rights as children born of legal marriage. The intestacy laws provide that where the deceased was in a de facto relationship or a domestic relationship at the date of his/her death, a child of the deceased includes:
- A child born as a result of sexual relations between the parties to the relationship,
- A child adopted by both parties,
- In the case of a de facto relationship between a man and a woman, a child of the woman of whom the man is the father or of whom the man is presumed, by virtue of the Status of Children Act 1996, to be the father,
- In the case of a de facto relationship between two women, a child of whom both of those women are presumed to be parents by virtue of the Status of Children Act 1996,
- A child for whose long-term welfare both parties have parental responsibility (within the meaning of the Children and Young Persons (Care and Protection) Act 1998).
The Status of Children Act 1996 contains presumptions of parentage arising from marriage, cohabitation, registration of birth, findings of courts, acknowledgments, and use of fertilisation procedures.
An adopted child has the same rights as a child born to the adoptive parents. The intestacy laws provide that an adopted child is regarded as a child of the adoptive parents for the purposes of distribution on intestacy.
Step-children do not have the same legal rights as biological children and adopted children. Testators need to be aware of this when considering their estate plan and any possible claims against the estate from step-children.
A Will may provide for distribution to a child or children of the testator as a general class without naming such beneficiaries. Step-children are generally not considered as children in this category. If it is the intention of the testator for step-children to inherit from their estate then step-children should be specified or named in the Will as beneficiaries
Complications may arise in the situation of a blended family where the testator leaves the whole of his/her estate to the surviving spouse and relies on the moral obligation of the surviving spouse to make provision for the testator’s children from a previous marriage. There is no guarantee that the surviving spouse will not change his/her Will and leave everything to his/her own children from a previous marriage. To avoid such problems, the testator may consider making direct provisions for his/her own children in his/her Will. Another consideration is to enter into mutual wills with the spouse which creates a legal contractual obligation on the surviving spouse and cannot be revoked after the death of the testator.
A step-child is not an “eligible person” automatically eligible to make a family provision claim in the Supreme Court of NSW where there is no provision for that step-child in the Will of the deceased. A step-child would need to satisfy two criteria to be eligible to contest a Will for provision – dependency on the deceased and that the step-child lived in the same household as the deceased.
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