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Can Children Born Outside Marriage Contest A Will?

Succession law in each jurisdiction of Australia allows particular family members, dependents, and close friends to contest a deceased’s will. Historically a child born outside marriage has not shared a legitimate child’s right to contest the will of a parent. This article examines the eligibility of children born outside of marriage to contest a will in Australia, with reference to relevant case law.

Children Born Outside Marriage

Ex-nuptial children (previously known as illegitimate children) are offspring born outside of marriage. A child is illegitimate if the parents were unmarried at the time of birth. Historically, an illegitimate child had a “legal disability” that prevented him or her from making a claim against the estate of a parent.

In modern Australia, the changing social perspective of children born outside marriage has led to statutory revisions on the legal status of children. Legislative changes in each jurisdiction have ensured that the inheritance rights of illegitimate children are now equal to those of adopted children and children born of a legal marriage.

Parliaments in Queensland, New South Wales, Victoria, Tasmania, the Northern Territory, Western Australia and South Australia passed legislation to equalise the status of legitimate and illegitimate children. The legislation does not eliminate the concepts of legitimacy, but it renders the distinction largely irrelevant in legal terms. For instance, the Queensland Status of Children Act 1978 states that the relationship between parent and child is determined irrespective of whether the father and mother have ever been married to each other.

This legislation establishes that there is no distinction between the ex-nuptial child and any other child of the deceased in respect to their right to inherit property in a will or from an intestate estate, or to make a claim against a deceased estate. The laws also outlined the procedure for a child of the deceased to prove their parentage in order to establish their eligibility to contest a will.

Establishing Parentage of children born outside marriage

A child born outside of marriage can only make a claim on an estate if they can prove parentage conclusively to the court. An application will not proceed unless parentage has been established or the court has issued a declaration of parentage. The legal requirements to prove parentage vary according to jurisdiction so it is essential that a claimant consult an experienced succession solicitor in their state or territory.

Generally, parentage is legally established through:

  • The parent’s assertion of paternity at some point during their lifetime, perhaps on a signed document such as a birth certificate;
  • Whether the parents were living together during the period up to and inclusive of the time that the child was born; and
  • Whether the parents were ever married, or in a de facto or registered relationship.

Rights Of Children Born outside marriage Under A Will

When a testator leaves a gift in their will to “my children”, legally it is taken to mean all their children, including ex-nuptial children on the same basis as legitimate children. In the ACT, the Wills Act 1968 states that any reference to a person’s issue in the will should be interpreted to mean both legitimate and illegitimate children unless the testator expresses a contrary intention.

The testator can exclude an ex-nuptial child from provision in their will by expressly stating their wishes. However, it is insufficient to merely use the terms “lawful” or “legitimate” to indicate this. The testator should outline their wishes clearly and specifically. Even then, the ex-nuptial child has the same right as a legitimate child to contest the will on the basis that their parent has made inadequate provision for their support.

Just because an ex-nuptial child has the right to inherit and to contest a will does not presume that a claim will be successful. The relevant Supreme Court will assess the claim on the same basis as any other claim. For instance, in the case of Estate Hemmes; Cameron v Mead [2018], the deceased left behind a large estate, a widow and several legitimate children, as well as an ex-nuptial son. The deceased fathered the child during an extramarital affair but he refused to acknowledge him even after a DNA test proved his parentage. When the testator died he left no provision for his ex-nuptial son and divided his estate between his wife and other children. He also transferred large sums of money to his two children in the week before his death.

The ex-nuptial son claimed that by making no mention of him in the will, his father had made inadequate provision for his proper education, maintenance and advancement in life. The court acknowledged that bare paternity is insufficient cause for entitlement, but also noted that the lack of relationship was a deliberate move on the deceased’s part and not the fault of the claimant. The court ordered a provision of $1.75 million dollars to the claimant.

Contact the contested wills team at Armstrong Legal if you have questions about the right of a child born outside marriage to inherit or contest a will. The team can advise you on your chances of successfully making a claim against the deceased estate, negotiate on your behalf with the executor and represent you during litigation. The team is waiting for you to call on 1300 038 223 to help you with any aspect of succession law.

Dr Nicola Bowes

This article was written by Dr Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first class honours from the University of Tasmania, a Bachelor of Laws with first class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade working in higher education, Nicola joined Armstrong Legal in 2020.

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