Adoptive parent assumes all rights and responsibilities once child is adopted
Under the NSW Adoption Act 2000, any adoption or order made by a court transfers all legal rights and responsibilities from the biological parent of the adopted child to the child's adoptive parent.
Further, section 95 states that the child has the same rights in relation to the adoptive parent as if the child was born to the adoptive parent.
Biological and adopted children treated equally under law
Adopted children and biological children are equal under law. This means an adopted child is treated as a "child" for the purposes of section 57 of the NSW Succession Act 2006 and is automatically eligible to commence a family provision claim against the adoptive parent's estate if that person feels he or she has not been adequately provided for under the will.
The claimant must commence a family provision claim in the Supreme Court of NSW within 12 months of the date of death of the adoptive parent.
To determine whether any provision should be made to a claimant who was adopted, and if so what amount, the court may have regard to an exhaustive list of factors under section 60 of the Succession Act, including (but not limited to) the nature and duration of the relationship, the financial circumstances of the claimant and the size of the estate.
Can an adopted child challenge the will of their biological parent?
On the other hand, can a person adopted as a child commence a family provision claim against the estate of a biological parent?
The question of whether an adopted child is eligible to commence a family provision claim against a biological parent's estate is not always straightforward.
Generally, a person adopted as a child at birth would not be eligible to commence a family provision claim against their biological parent's estate.
This is the case unless they can satisfy some other form of eligibility under the Succession Act.
For example, an adopted child may be eligible to commence a claim against their biological parent's estate if they can demonstrate that they have lived with their biological parent for a period and were partly or wholly dependent upon the biological parent during that period.
Sandra Jeremy
Will disputes
Stacks Law Firm
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.