Is an adopted child eligible to challenge their biological parent(s) Last Will & Testament?

Adoption Act 2000 (NSW)

In accordance with the Adoption Act 2000 (NSW), an adoption order made by the Court transfers all rights and responsibilities from the child’s biological parent(s) to the adopted parent(s). In the eyes of the law, the connection between the child and biological parent(s) will be severed and a new relationship is established between the child and the adopted parent(s).

Factors Warranting

The question of whether an adopted child is eligible to claim from their biological parent(s) Estate is not straightforward. The answer will depend on answers to the following:

• Whether the child was adopted at birth or later in life
• If the adopted child was either partly or wholly dependent on their biological parent(s)
• Whether the adopted child was a household member of their biological parent(s)
• Whether the adopted child meets the definition of an 'Eligible Person' outlined within the Succession Act 2006 (NSW). (In the event a child was to reconnect with their biological parent(s) and reside with them, then that child may fall into the category of an 'Eligible Person').

In all these cases, there needs to be additional factors warranting the making of an order.

Legal standing on biological parent(s) Estate

Normally a child adopted at birth would not have legal standing to make a Family Provision Claim under Chapter 3 of the Succession Act 2006 (NSW) to claim from their biological parent(s) Estate.

If a biological parent(s) made provision in their Last Will and Testament or died intestate (without a Will), then again that child normally is not eligible to bring a claim for a greater provision.

Legal standing on adopted parent(s) Estate

On the flip slide, an adopted child has a claim on their adopted parent(s) estate. A child has the same legal rights to their adopted parent(s) estate, as if that child was considered as their own natural/biological children.

The Succession Act 2006 (NSW) refers to Eligible persons as:

• Section 57(1)(c) – "A child of the deceased person"
• Section 57(2)(b) – "A child adopted by both parties"

Right to Claim on an Estate

If a child believes they have a potential claim on their biological parent(s) or adopted parent(s) estate, then it is important you obtain legal advice and act promptly as a claimant only has 12 months from the deceased's date of death to lodge a claim with the Supreme Court of NSW. If, as an adopted child you believe that you have a claim against either your biological parent(s) or adopted parent(s) estate, then feel free to contact one of our Wills and Estates Solicitors to schedule an appointment. 

Any advice on this website is general in nature and should not be relied on. Specific advice can be provided to you upon engagement with Maclarens Lawyers.