Historically, conversations around kitchen tables about the rights of adopted children and step children have been common place in relation to inheritance law, but with reproductive technology become considerably more advanced and more accessible to people, it adds another dimension to the conversation. In this audio podcast, Estate Litigation Lawyer, Lucy McPherson discusses the growing complexity.
Lucy’s comprehensive article on the rights of children in inheritance law can be found here
Attwood Marshall Lawyers have a dedicated team of Wills & Estates lawyers that specialise in estate planning and estate litigation. Contact our Department Manager Donna Tolley on direct line 07 5506 8241 or freecall 1800 621 071 for a free initial consultation.
Transcript
Dan: Historically, conversations around kitchen tables about the rights of adopted children and step children have been commonplace in relation to inheritance law, but with reproductive technology becoming considerably more advanced and more accessible to people, it adds another dimension to the conversation. I’m joined today by Lucy McPherson and the state litigation lawyer from Attwood Marshall Lawyers. Lucy, broadly speaking, what is inheritance law?
Lucy: Well Dan, inheritance law is an umbrella term that we use for the laws shaping who is entitled to receive what from an estate of a deceased person, who is entitled to make a claim on an estate of a deceased person and also the legal formalities required in the act of drawing a will and administering an estate. In Australia, inheritance law is actually state based, inheritance law in New South Wales is predominantly contained in the Succession Act of 2006 and in Queensland it’s Succession Act of 1981.
Dan: I’m assuming most of your work today as a estate litigation lawyer has largely been perhaps those more traditional aspects of inheritance law like rights of adopted children, or stepchildren, but has reproductive technology changed things for you as a lawyer?
Lucy: Well, yes it has and the law is slowly moving to adopt new regulations to assist in those situations, so the law does essentially evolve with the changing societal norms, and that’s allowed us to move forward with these scenarios that are becoming more common.
Dan: When we talk reproductive technology, what are we really talking about?
Lucy: Reproductive technology is essentially technology used to gestate a child and not necessarily, well, not naturally born from your usual biological parent scenario. There’s a number of reproductive technologies out there and it’s not necessary for me to go into detail about those today, but essentially any technology that allows two people to bring about the birth of a child that is not necessarily biologically theirs.
Dan: Ok, so how does that impact upon the inheritance rights?
Lucy: Well, there are a number of complex estate planning issues that may arise in a variety of scenarios involving reproductive technologies. Essentially, reproductive technologies prelude into the question of legal parenting issues into the spotlight, who will be treated as the descendants child or grandchild, niece, nephew, and so on. Once it’s established who is the legal parent of a child, that definition shapes the rights for that child, including legal standing to bring a claim on an estate, the meaning of a child in a will or trust, or the rights of that child are an intestacy, an intestacy is a term we use within the law to describe the distribution of an estate where there’s no valid will.
Dan: Okay, so is it the case that there is no real answer I suppose, to a particular scenario, it’s something that the law will consider on a case by case basis?
Lucy: Absolutely. You’re absolutely correct in that conclusion. Every scenario is different and some need to be treated that way.
Dan: What about the rights of stepchildren?
Lucy: Well, the rights of stepchildren vary from state to state, specifically in relation to standing to bring a claim on an estate or challenge a will. In Queensland, for the purpose of eligibility to bring a claim on an estate, stepchildren are regarded the same as biological children, however it gets a little bit complicated when you look into the meaning or the definition of stepchild under the legislation, so it can be heavily qualified, and become quite complicated in its application. In New South Wales, stepchildren do not share equal rights with biological children. They’re not automatically regarded as the same as a biological child. There is a mechanism for stepchildren to be able to make a claim on an estate in New South Wales but there must be able that they were wholly or partly dependent on the deceased person. As you can see, it does vary from state to state.
Dan: What about the rights of an adopted child? Is that different to a stepchild?
Lucy: Yes, absolutely. It’s a very different scenario again. I will address this question again specifically in relation to legal standing to reclaim on an estate or challenge a will because that’s the most common scenario that we look at. Under the law, an adopted child qualifies as a natural child. An adopted child has the same rights in relation to the adoptive parents as a natural born child to those parents. Therefore both natural and adopted children are seen as equals in the eyes of the law and there is no difference between the two when it comes to challenging a will. However, where it does become a bit complicated is once an adoption has taken place a child who has been adopted out, has no right to claim against the estate of their biological parents, so essentially the act of adoption ceases all relations between those parties.
Dan: It’s a fascinating area of law, isn’t it?
Lucy: Yes, absolutely. I very much enjoy working in this area of law. As you can see it’s quite complicated and it’s important to seek the right advice because as I said earlier, every case is very different in its application.
Dan: In terms of estate litigation that would arise in claims, is there a particular cohort sort of people where these claims come from? Is there a significant number of adopted children or stepchildren that actually bring about a claim?
Lucy: In my experience, adult children, as of the deceased person are probably the most common category of claimants in relation to challenging a will. When I say adult children, that can encompass stepchildren and adopted children as well. We do receive quite a lot of inquiries from children that may have been adopted out, looking to claim on the estate of their biological parents, but as I’ve explained earlier, that’s not available to them under the law.
Dan: Interesting stuff, thanks Lucy.
Lucy: Not a problem, Dan.
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