The rights of adopted children under the law are identical to any other children, read on…
Question:
My brother and I are both adopted and we are the only beneficiaries in our adopted parents’ wills. But about five years ago my brother fell out with our parents. He physically abused them and he no longer has any contact with any of us. My parents are now elderly and frail and want to change their wills, to have my family and I as sole beneficiaries, but they worry he may challenge their decision after their passing.
If he does, what are his chances? How long does he have to challenge? And what can my parents include in their wills as a protection against this?
Answer:
The rights of adopted children under the law are identical to any other children. The Inheritance (Family Provision) Act provides that certain people, including children such as yourselves, may claim under the Act. Such a claim must be made within six months after Probate of the Will was granted, which is the date when the Will was proved to be the deceased’s last Will and Testament.
You can seek a copy of a Will for which probate has been granted from the Probate Registry of the Supreme Court, 1 Gouger Street, Adelaide SA.
A claimant must establish that the claimant was left without adequate provision for that person’s proper maintenance, education or advancement in life. A person who is estranged from the deceased may therefore be a claimant. The age of the claimant does not matter.
It will be a matter for the Courts to determine whether or not the claimant should receive anything and if so how much. This determination will include all of the circumstances regarding the relationship between the deceased and the claimant.
It is not possible to write a Will which excludes the abovementioned legal rights. The best that can be done is for the deceased person to state in writing their reasons for excluding a person. These reasons will be part of the information considered by the Court. The fact a child has been physically abusive towards the parents will not assist that child’s claim but it does not necessarily constitute a disqualification either.
If your parents feel strongly enough about this they may want to give consideration to transferring assets while they are still alive. In that way there will be little or no property to argue about after their deaths.
Any decision along these lines needs to be made with the assistance of legal advice as well as financial advice, particularly as to the effects on Centrelink benefits that may arise as a result of such actions.
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