To challenge a Will, or to make what is called a ‘Family Provision Claim’ against a deceased person’s estate, you must be an eligible person. But if you aren’t a member of the family by birth, are you still eligible to make a claim?

Sarah’s Story

This issue arose at HKH recently. Sarah* was adopted when she was 6 months old. She reunited with her biological father (Mark*) when she was 19 years old. She met and established good relationships with her biological siblings, Megan and Louise, but failed to maintain a good relationship with Mark. Some years later, Mark died and his Will stated that all of his estate was to go to Megan and Louise. Sarah wanted to know if she could challenge the Will.

Could Sarah challenge her biological father’s Will?

In short, no. As Sarah had been formally adopted when she was young, the law in ACT and NSW says that Sarah ceased to be regarded as a child of her birth parents and was therefore not eligible to bring a claim against Mark’s Will.

What if Sarah wanted to make a claim against her adoptive parents?

Sarah would be eligible to make a claim in this instance. In the ACT and NSW, an adopted child is regarded in law as the child of their adoptive parents and has exactly the same rights as any child born to the adoptive parents.

Any exceptions?

No rule is without exceptions and Sarah’s right to inherit from her biological father may have differed if:

• the adoption occurred years after the Sarah’s birth (eg. when she was 16);
• Sarah’s biological father died before the adoption occurred; or
• after adoption, Sarah re-established and maintained a relationship with her biological father, and/or became financially dependent on him.

If you have been adopted and find yourself in a situation like this, HKH can help you to discuss your eligibility to make a claim.