In our world of modern and blended families, sometimes it is not as straightforward as it may appear, to define whether a “child” is in fact a child of a deceased person in the legal sense.
Many parents will write the names of their children in their Wills as the beneficiaries, or recipients of their estate. Some however will simply state that their estate is to be divided amongst “my children”.
Any bequest or gift in a Will which is expressed to be for the “children” of the deceased will usually mean:
- any biological children of the deceased
- a child conceived prior to the deceased’s death and subsequently born alive
- an adopted child
- a child who is considered the legal child of the deceased as a result of assisted reproductive techniques (IVF). Click here for more information.
- a child who is the legal child of the deceased as a result of a parental order obtained in relation to a surrogacy arrangement. Click here for more information.
Step-children of the deceased are usually not considered by law to be a “child” of the deceased for the purposes of the Will and cannot take anything that is left to the “children” of the deceased.
However, a step-child may be able to make a claim against the their Will step-parent’s estate for an Award in some circumstances. A solicitor can assist you to do this. This claim is referred to as a Family Provision Claim, and it involves contesting the Will. Click here for more information.
The effect of adoption is that the adopted child is treated in law as if he/she were the biological child of the adopter(s). An adoption that occurred overseas must comply with the laws of applicable State to be legally recognised.
You may need to obtain legal advice on inter-country adoptions to determine your status.
An adopted child will not be able to make a claim against his/her natural and biological relative’s estate and vice versa. Once a child is “adopted out” to a new parent, they are no longer taken by law to still be a child of their biological parent, and cannot contest the will of their biological parent by virtue of their relationship.
However, if the child has re-established contact with their biological parent before the death and had become dependent on the biological parent, it might be possible to make another claim under a different category.
The laws regarding children born of assisted reproduction techniques (IVF) have changed a number of times over the years and may vary from State to State. Usually, where a woman was married or in a civil partnership at the time of the technique, her husband or civil partner will be treated as the father or second parent of the child unless the husband or civil partner can prove that he did not consent to the procedure. The donor of sperm who has consented to its use is not treated as the father of the child.
The law regarding surrogacy arrangements also varies from State to State and you may need to obtain advice from a lawyer specialising in family law regarding such arrangements.
Usually, the woman who gives birth to a child will, in law, be treated as the child’s mother. The commissioning parents in surrogacy can seek a parental order from the courts which will ensure that the child will be treated as their legal child. Once this has occurred, like adoption, the child will not be able to succeed in a claim against the child’s natural and biological relative’s, or birth mother’s, estate and vice versa.
There are a number of obligations that must be satisfied before this can occur and you should contact a lawyer specialising in family law if you have any questions about a surrogacy arrangement.
Gifts in Wills
Usually, a gift in the Will that is stated to be given to “all my children” is easy to define. The gift will be divided amongst all of the people who fall within the definition of “child” at the date of the deceased’s death. Any child who was born after the deceased dies will not fall within the definition unless the child had been conceived prior to the deceased’s death.
If a child is under the age of 18 at the time of the deceased’s death, they cannot receive the gift until they turn 18, and usually their funds will be held on trust for them or invested in terms of the will until then.
If the will states that a child must wait until they are a different age (eg 25 years old) before they can take, then of course they need to wait until then.