Estate Disputes and Illegitimate Children

Can you imagine a world where only 50% of children have the right to an Estate Dispute if they believe they have been left without adequate provision from a deceased parent’s Will? Social trends data released by the Australian Bureau of Statistics in 2012 purported that one in three infants born in Australia were born outside marriage,[1] and in 2013 it was estimated by the Office for National Statistics that by 2016 50% of all children born in the UK would be born to unmarried mothers, with figures for Australia demonstrating a similar scenario. [2]

Can Illegitimate (Ex-Nuptial) Children Dispute A Will?

At current, if you are an ex-nuptial child, you have the right to launch an Estate dispute. However, this has been true only for the last 40 years or so.

It was not until the 1970s when the Status of Children Legislations were gradually passed across Australia, that children who were not born to a married couple (ex-nuptial or illegitimate children) were provided with the same entitlements as legitimate children in relation to Estate Law. Before this legislation, illegitimate children were provided with virtually no rights.

At current, for all States and Territories aside from the ACT, it has been provided that there is no longer any legal difference between nuptial (legitimate) and ex-nuptial (illegitimate) children in relation to intestacy law.[3]

In Victoria as amended, this concept has been furthered by Section 90 of the Administration and Probate Act 1958 (Vic). Here it provides that a child has the right to commence a Testators Family Maintenance Claim or ‘TFM Claim’ and it makes no mention ‘to the exclusion of ex-nuptial children’. Rather, a step-child or adopted child of the deceased now also has the right to an estate dispute, accompanied by an ‘assumed child’, so a child who has been treated by the deceased as a natural child, even if not biologically so.[4]

Are Ex-Nuptial Children Included In A Gift To ‘My Children’ In A Deceased’s Will?

The effect of the Status of Children Legislation is that both legitimate and illegitimate children are considered ‘natural’ children under the law. This means that if a parent writes into the Will a gift to ‘my children’, this would be taken to mean that they intended both their ‘legitimate and illegitimate’ children to be included in gift distribution.

Can The Will Maker Exclude Ex-Nuptial Children From Their Will?

Technically speaking, a will maker can exclude anyone they wish in their will, however they must state their intention clearly as to why, and they must not have a duty of care under the law to provide for that child. The big change since the 1970s is that if you, as an ex-nuptial child, have been excluded, you now have the legal right to apply to the court for it to hear your case for provision out of the deceased parent’s Estate.

When Are You Eligible To Dispute A Will?

It must be noted that just because as an ex-nuptial child you are now afforded the same rights as a nuptial child, this does not mean that you are automatically eligible to launch an Estate dispute regarding a deceased parent.

Rather, after establishing that as an ex-nuptial child you are an eligible applicant, you then must

  • determine that the Will of the deceased is valid in itself; and
  • believe that you have been left without adequate provision. The court will consider a number of factors in trying to ascertain whether this is true or not

Once you have established that you are eligible, you should consider launching your claim to ensure that you receive a fair share of the Estate. Speak to the team at Hentys Lawyers for more advice and information on how to move forward with the Will Dispute in regard to the Estate.

[1] Sue Dunlevy, ‘One-third of Infants Born to Unmarried Parents’ The Australian (Melbourne) 29 March 2012.

[2] Steve Swinford, ‘Most Children Will be Born out of Wedlock by 2016’ The Telegraph (London) 10 July 2013.

[3] See eg Children (Equality of Status) Act 1976 (NSW); Status of Children Act 1978 (NT); Status of Children Act 1978 (Qld); Family Relationships Act 1975 (SA); Status of Children Act 1974 (Tas); Status of Children Act 1974 (Vic). Specific amendments have been made abolishing the distinction of legitimacy for particular purposes In Western Australia.

[4] Administration and Probate Act 1958 (s 90).