Rightful claims to an estate: can secret relatives contest a Will?

Family relationships can be incredibly layered and complex, which is only further amplified when secret relatives come forward.

While in 1971 only 7.4% of births were ex-nuptial, this figure soared to 34.8% by 2017 and has remained relatively steady since then.

It’s not completely uncommon for secret relatives, such as illegitimate children, to reveal themselves after people pass away. Other relatives of the deceased may not have even known this person was out there, but as the biological child of the deceased, have they got a valid claim against the estate?

Can an illegitimate child contest a Will?

It was not until the 1970s that the laws surrounding whether an illegitimate child can contest a Will gradually changed in Australia. Before then, children born out of marriage, also known as ex-nuptial or illegitimate children, did not have the same entitlements as legitimate children under estate law.

While illegitimate children previously had next to no rights under estate and intestacy law, all states and territories aside from the ACT now see them and legitimate children as equals.

Both can now dispute an estate if they are dissatisfied with their inheritance, as can a step-child, adopted child and ‘assumed child’ of the deceased under section 90 of the Administration and Probate Act 1958 (Vic).

Intestacy, illegitimate children and contesting a Will

The law of intestacy can be highly influential leading up to estate administration, and this is no different for cases that involve illegitimate children.

When a person dies intestate, this means they have passed away either without a valid Will altogether or with an incomplete Will that doesn’t mention certain estate assets. The latter often happens when an individual fails to update their Will after acquiring new assets, such as property.

As there is no clear indication of what the deceased would have wanted, the Court determines how to distribute estate assets on their behalf and in their best interest. The Administration and Probate Act 1958 (Vic) details a clear process to guide the Court during this process, which is essentially a hierarchy of distribution.

Based on this, if the deceased did not have a valid Will at the time of their death or a surviving partner or spouse, their biological children would all receive an equal share of their estate. This means as long as illegitimate children are biologically related to the deceased, they are entitled to the same equal share of the estate as any other biological children.

Can a Will maker exclude illegitimate children from their Will?

If the deceased has written a valid Will that accounts for all of their estate assets, they can choose not to provide for their illegitimate child. When doing so though, they must clearly state their intention and explain their decision. They also must not have a duty of care to provide for that child under law.

However, biological children of the deceased are considered eligible people and are entitled to make a claim against the estate for further provision if they wish to do so.

In Victoria, such claims cannot be made until there is a grant of probate or letters of administration. After this, eligible people have a six-month window to contest or challenge the Will.

For a Will contest to have any chance of success, the claimant must prove to the Court that the testator had a moral obligation to provide for them. Another factor that is taken into account by the Court in most if not all Will contest cases is if the claimant has a financial need not adequately met by the provision pursuant in the Will.

The following may also be taken into account:

• The relationship between the claimant and the deceased;
• Any competing obligations;
• The size and nature of the estate;
• The character and conduct of the claimant;
• Any evidence of the deceased’s intentions with respect to the claimant;
• Health factors that relate to the claimant and other beneficiaries.

When the deceased leaves a gift to ‘my children’ in their Will

While the Will maker may intend to exclude an illegitimate child from mention in their Will, their wording of certain phrases can inadvertently result in them leaving the individual an inheritance – without the illegitimate child needing to pursue and win a case against the estate.

The Status of Children Legislation that was passed in the 1970s has made it so legally speaking, legitimate and illegitimate children are ‘natural’ children of their biological parents. This means when administering the deceased’s estate, if they have included any phrases where they leave gifts to ‘my children’ in their Will, this is taken to mean they intended for both their legitimate and illegitimate children to be included in the gift distribution.

Can a biological child that’s been adopted contest the Will?

Generally speaking, a child that has been adopted pursuant to the Adopting Act 1984 is not eligible to contest the Will of their biological parent. This is because under the Act, when the new adopted parent becomes the child’s parent, the biological parent is no longer the parent of the child.

If the individual has been adopted, they are not considered an eligible person under estate law, which means they are not in the position to dispute the estate of their biological parent.

While exceptions to this rule are few and far between, there is one circumstance where an adopted child may be eligible to contest their biological parent’s estate. This is when for a significant period of time the child believed the deceased was their parent, and was treated by the deceased as their natural child.

An example of this would be if a person was adopted out as a child, but as they grew older they found and contacted their biological father. If for the rest of the biological father’s lifetime they treated the child as their own, the adopted child may be eligible to make a claim against their estate for further provision.

The process of contesting a Will

Once you have completed all of the preliminary stages of contesting a Will, which includes satisfying any administrative factors, ensuring you are an eligible person under estate law and making sure you have adequate grounds to pursue a claim, the process initiating proceedings begin.

The first stage is having your application approved by the Court, and serving this documentation to the estate’s solicitors. This confirms you are eligible to contest the Will they are representing and intend to do so.

Once the other side accepts their role in the dispute, which is done with a Notice of Appearance, both parties are given a date their court-ordered mediation must be completed before. A trial date is also provided, but the vast majority of disputes are settled out of court, as those involved reach an agreement during mediation.

Mediation is typically scheduled in three to four months time, which gives both the Plaintiff and Defendant sufficient time to prepare legal documentation, such as initial Affidavits and Position Statements. At this time, all beneficiaries of the Will are also notified of the legal proceedings taking place, as they could be directly impacted by the outcome and may want to defend against the claim.

If the matter is settled at mediation, the Terms of Settlement are written down and signed by all parties, which forms a binding agreement. In the few cases where mediation fails though, the case progresses to court and heard before a judge who determines the final outcome.

Contesting a Will as an illegitimate child: Case law

The following case of Estate Hemmes; Cameron v Mead [2018] NSWSC 85 occurred in New South Wales, where estate law can differ from that in Victoria.

The details

In 1983, the testator had a six-year affair, which lead to the birth of his illegitimate son in 1990. In 1995, DNA testing declared the man was the child’s father, but he refused to accept the child as his own.

In 2010, the son began writing letters to their biological father, expressing their interest in speaking with and meeting him. The father refused to respond.

When the testator died in 2015, he had never met his illegitimate son and did not leave him any provision in his Will.

The deceased’s wife was a joint tenant of the family home, and because of this automatically inherited the $34 million property.

A week before his death, the testator transferred $5.7 million to his two legitimate children, who along with the deceased’s general manager inherited the remainder of the estate.

The outcome

In 2016, the illegitimate son contested their biological father’s estate, claiming the deceased had not provided them with adequate provision for proper maintenance and support.

The following was taken into account:

• The son tried hard to get to contact with and to get to know their father;
• It was solely the father’s actions that led to the estrangement;
• The father paid the minimum amount of child support required by law, which was very little given his affluence;
• The father had not left their biological son with adequate provision.

The claimant was successful, and was awarded $1.75 million from their father’s notional estate.

Speak with our estate lawyers

At Hentys Lawyers, we have experience dealing with hundreds of estate disputes, and over 95% have settled out of court. If you think you have a claim to contest a Will, call our estate lawyers today for your free 30 minute initial consultation.