Family inheritance law: The rights of secret relatives

The final episode of Fisk (season 1) has aired on our screens, and it did not disappoint.

There were two events that sparked my interest, the first being bold variations to Helen’s wardrobe, including her signature brown suit, a flight attendant outfit, an ordinary yet appropriate office outfit, and my personal favourite, a “jazzed-up” altered rendition of her brown suit, trimmed with gold and silver sequins.

The second was a new client named Petro, who was claiming to be the “illegitimate” son of a nationally treasured newsreader, Georgios Papadakis, who had recently passed away. When asked if he wishes to make a claim from Georgios’ estate, Petro notes that his main goal is to be acknowledged by the family as Georgios’ son, but it’s also “not, not about the money”.

Often, when dealing with estates, secret relatives do reveal themselves after people die. But unlike this Fisk finale, using DNA testing to confirm if someone is biologically related is relatively rare in our experience.

Using the Fisk example, and presuming that Georgios did not leave a surviving spouse partner, and that Petro was the biological child of Georgios, would he have the same rights to the estate as his other biological children?

The Law of Intestacy

A crucial factor is whether or not the person who died left a valid Will. If they did not, the laws of intestacy would apply.

Applying the Victorian laws of intestacy to the Fisk example, if Georgios did not leave a valid Will, partner or spouse, and Petro was in fact Georgios’ biological child, he would be entitled to the same equal share of Georgios’ estate, as each of his other biological children, who had a close and loving relationship with Georgios.

However, if Georgios left a valid Will and did not provide for Petro, Petro would not be entitled to a share of Georgios’ estate, unless he brings a claim for further provision from Georgios’ estate.

Claims for further provision from an estate

In some states – for example, Victoria - the Court has the power to make an order that provision be made from the estate of a deceased person for the proper maintenance and support of an eligible person, subject to certain criteria. 

In this case, a biological child of a deceased would clearly fall within the definition of eligible persons (adopted children are an exception), however it’s important to note that the rules in each state vary greatly.

Does an adopted child have inheritance rights from their birth parents? 

Children who have been adopted pursuant to the Adoption Act 1984 are often not eligible to challenge a biological parent’s estate. This is because pursuant to the Adoption Act 1984, if a child is adopted out, then the new adopted parent becomes the parent of the child and the biological parent is no longer the parent of the child.

So, in the Fisk example, if Petro was Georgios’ biological child, and was never adopted by non-biological parents, he would have been eligible to challenge Georgios’ estate.

However, if he was adopted, Georgios would no longer be recognised by law as the father of Petro, and Petro would not be eligible to claim on Georgios’ estate.

The exception to inheritance and adoptions

There may also be an exception to this exception, where children who, for a substantial period of their lifetime, believe a deceased was their parent, and the deceased treated them as if they were their natural child.

Again, using the Fisk example, if Petro was adopted out, but say at the age of 9, Georgios reached out to Petro and let him know he was a biological father, and then treated Petro as his son for the remainder of his lifetime, he may again be eligible to bring a claim, pursuant to section 90(g) of the Administration and Probate Act 1958

Other criteria in family provision claims

It is also important to note that once eligible, further criteria needs to be met by a “child” claimant. When assessing these matters, the court will also look at whether the deceased had a moral obligation to provide for the claimant, and whether they have a financial need not adequately met by the provision pursuant to the Will.

It’s here, where the actions of the deceased towards the claimant and the relationship between the claimant and the deceased during the deceased’s lifetime will become relevant.

So, what’s the take away here? It’s complicated.

If you believe you may have a claim similar to this, our Will dispute specialists can help you find out if you have a claim worth pursuing.