The Testator’s Family Maintenance Act 1912 (Tas) (the ‘Testator’s Act’) defines ‘child’ to include ‘adopted child’. The Intestacy Act 2010 (Tas) also regards an adopted child as a child of the deceased for the purposes of distribution of an intestate estate. If there are no complications with the execution of a will, there need not be a reference to either Act.
There are circumstances where adopted children may have been left out of a will, or where the deceased has died intestate. Where there is an intestacy, an adopted child will be considered a child for the purposes of the statutory order for next of kin. But what rights would an adopted child have to make a claim under the Testator’s Act?
Under the Testator’s Act, the spouse, children and parents of a deceased person can claim under the Act (s3A), whether the person died testate or intestate (s3). As mentioned, ‘child’ includes an adopted child. The procedure is to make an application to the court for a share in the estate. The Court is required to consider the net value of the estate of the deceased person, and whether the applicant has means of support from other sources (s7).
The discretion of the court is broad, and includes the discretion to refuse an application on the basis of the character or conduct of any person by or on behalf of whom the application was made (s8). Where the deceased left a valid will, the court may have regard to the reasons, if they can be found, for making the dispositions as were made in that will (s8A).
Ex-Nuptial (Illegitimate) Children
The Status of Children Act 1974 (Tas) states that all children are to be of equal status, whether their parents were married or not (s3). This means that all children of a deceased have rights under the Testator’s Act, and the Intestacy Act. Where a will does exist, an example of the operation of the equal status of children would be: the will states ‘my remaining property is to be divided equally amongst my children’, and there are 2 children to a current husband, and 2 to a de facto relationship, then all 4 children will receive a equal share. However, if the testatrix writes ‘my remaining property is to be divided equally between my 2 children to my current marriage to Bob’, then there is an intention to exclude the other children. They may still be able to bring an application under the Testator’s Act.
Stepchildren and half-siblings
Step-children are not considered to be children of the deceased. However, half-brothers or half-sisters of the deceased are considered to be ‘sister’ or ‘brother’ when reference is made to such in a will. Where a deceased dies intestate, half-brothers and half-sisters are entitled to participate in the estate of the intestate as full siblings.
Page last updated 13/12/2017