Are adopted children eligible to contest a will?

Under the law, an adopted child qualifies as a “natural” child. The NSW Succession Act provides clarification on this topic by stating that an adopted child has the same rights in relation to the adoptive parent(s) as a natural child born to them.  

A child of the deceased estate is an eligible person who may apply for a family provision order in respect of the estate of a deceased parent.  

Therefore, both natural children and adopted children are seen as equals in the eyes of the law and as such there is no difference between the two when it comes to what they are entitled to and how assets are distributed.  

Can an adopted child contest his/her birth parents’ will?  

Generally not, if the adoption was soon after birth. When a child is adopted, the legal connection between the birth parents and the child is severed completely. Adoption, by its very definition, means the biological parents have given up all their rights and responsibilities as parents to the child.   

A new legal connection is made between the child and their adoptive parents. Therefore, an adopted child would not be deemed a “child” of the deceased, so would not qualify by that criterion as an “eligible person” to make a family provision claim.  

Birth parents can choose to list their biological children as beneficiaries in their will and, in most cases, this would be honoured (provided other family members do not contest the will or challenge the will).    

If you are a biological parent and you are planning to list your biological children as beneficiaries, we recommend you make it very clear in the will as to what the child is to receive, how to find the child, and where they are located.   

There may be some isolated circumstances where an adopted child could contest their birth parents’ estate, such as an instance where the adoption occurred some years after birth, though we would need to discuss the specific circumstances to advise further.  

 What if an adopted child developed a dependent relationship with his/her birth parent(s)?  

If a child is adopted ‘out’ and subsequently forms a dependent relationship with his/her biological parent, and becomes a member of their household, then the child may become eligible to contest their biological parents’ will.   

This still applies despite the legal relationship of the parent no longer being in effect between the child and the biological parent. If you are an adopted child in a situation such as this and you think you might be eligible to contest, call us to discuss your specific circumstances.