The position of adopted children in deceased estates - Conditsis Lawyers

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The position of adopted children in deceased estates

An adopted child has the same rights in relation to the adoptive parent(s) as a natural child born to those adoptive parents.

If an adoption order is made, then pursuant to section 95 of the Adoption Act 2000 (NSW):

  • the adopted child has the same rights in relation to the adoptive parent, or adoptive parents, as a child born to the adoptive parent or adoptive parents,
  • the adoptive parent or adoptive parents have the same parental responsibility as the parent or parents of a child born to the adoptive parent or adoptive parents,
  • the adopted child is regarded in law as the child of the adoptive parent or adoptive parents and the adoptive parent or adoptive parents are regarded in law as the parents of the adopted child,
  • the adopted child ceases to be regarded in law as the child of the birth parents and the birth parents cease to be regarded in law as the parents of the adopted child.

For the purposes of a distribution of a deceased estate on intestacy and in keeping with the general effect of adoption orders set out in the Adoption Act 2000 (NSW), an adopted child is regarded as a child of the adoptive parent pursuant to section 109 of the Succession Act 2006 (NSW). The adopted child’s family relationships are to be determined accordingly.

For the purposes of interpreting a will-maker’s Will, if the testator provides that a legacy is to vest in their child or children without expressly identifying that child or children by name, then any adopted child or children the testator may have is to share in that legacy.  

It is important to note that step-children are not included in the reference to a ‘child’ in succession legislation.

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