This article was originally drafted and published on 10 August 2017
Life has a funny habit of delivering up circumstances that we wish it never did, including certain life events bringing with them a briefcase full of daunting problems requiring attention.
A particular example of this, is the decision to adopt a child out. In Queensland, adoption processes are governed by both the Adoption Act 2009 (Qld) (the Act) and the Adoption Regulation 2009 (Qld) which were amended by the Adoption and Other Legislation Amendment Bill 2016 (Qld).
This legislation, understood at a broad-level, facilitates the adoption of a child from their biological parent(s) by way of a final order at the jurisdictional hands of the Childrens Court (NB: a child may be adopted whether or not the child has been previously adopted pursuant to s 10 of the Act).
Section 214 of the Act states that a final adoption order effects a new legal parental relationship between the adopted child and the adoptive parent(s) while severing the legal relationships between the former biological parent(s) and family members including the child’s siblings. In short, while the child may be related biologically to their birth parent(s), their legal relationship as parent and child no longer exists.
Family provision applications
So, what does this mean in relation to succession law and family provision Applications? Well, to claim for further and better provision from an estate in Queensland, a person must first satisfy the criteria of being an eligible applicant. They must either be:
- a spouse;
- a child; or
- a dependant
of a deceased person according to s 41 of the Succession Act 1981 (Qld) (Succession Act). A child is defined within the Succession Act to include either a stepchild or an adopted child of a deceased person (NB: the Court and Civil Legislation Amendment Act 2017 (Qld) has expanded the meaning of a stepchild for the Succession Act).
Adopted child claiming further and better provision
Once an adoption has formally taken place by way of final orders and amendments to the child’s Birth Certificate, the legal relationship between the biological parent(s) and child expires. As a result, the child who is adopted out loses their automatic right of entitlement to inheritance from their biological parent(s) estate(s). An important note in relation to understanding the nature of Birth Certificate amendments can be found within the case of A & B v C [2014] QSC 111. In this case, while focusing on artificial insemination so a same sex couple could have their own child, Lyons J stated:
“…a Register of Births, Deaths and Marriages is, as has been discussed in the NSW decisions, a register of statistical and evidential information mainly for the purposes of succession law. It is not a register of genetic material.”
In this matter, the biological father was removed from the child’s Birth Certificate and was replaced with the non-biological parent. Lyons J notes that irrespective of biology or genetic makeup, amendments to Birth Certificates are done as a means of recording accurate records; particularly for succession law purposes. In circumstances of adoption, a similar process is taken – an amendment to the Birth Certificate is made reflecting the names of the adoptive parent(s) as the parent(s) of the child thus removing the names of the biological parent(s).
Alternatively, however, the adopted child will be able to satisfy the definition of a child in relation to claiming for further and better provision from their adoptive parent(s) estate(s).
Testators, express gifts and children who have been adopted out
While a child adopted out loses their automatic right to an inheritance, the biological parent(s) can still make an express provision for the child under their Will(s). Such severance of the legal relationship does not prevent a Testator from expressly gifting a portion of their Estate to the child; accordingly, estate administration of the deceased estate would then run its natural course. However, in instances where a biological parent provides an inheritance to a child and such child is unascertainable, then s 217 of the Act requires the legal personal representative (LPR) of the estate to request the assistance of the Queensland Public Trustee (QPT) (formerly known as the Public Trustee of Queensland).
In doing so, the LPR must provide a copy of the Will accompanied with Notice to the QPT stating that they are unable to locate and/or identify the child. The QPT must then provide such Notice to the Chief Executive (CE) and request for the CE to take all necessary steps to identify and locate the child as referred to in the Will. Upon obtaining such information the CE is to provide the details to the QPT and they are to forward those details to the LPR. In relation to transfers of property, the QPT may accept same on behalf of the child as trustee which will then be taken to have been a transfer to the child made by the LPR pursuant to s 217 of the Succession Act.
It is important to note that pursuant to s 218 of the Act, a LPR may transfer or distribute property to persons who appear entitled to it without finding out whether or not an adoption has happened. Accordingly, such transfer or distribution will not result in liability of the LPR to a person claiming directly or indirectly because of an adoption, unless they have Notice of the claim before they transfer or make a distribution.
Adopted out children under the guise of a dependant
In relation to Applications for further and better provision, a dependent includes any person, who, in relation to a deceased, was being wholly or substantially maintained or supported by a deceased person as at the date of death, including being a person under the age of 18. With this in mind, it is also important to note that adoptions can either be open or closed.
Open adoptions facilitate communication between the biological parent(s), adoptive parent(s) and the child either through the use of technology, third-party services, or face-to-face interactions. In a publication by The Australian Institute of Family Studies titled Past and Present Adoptions in Australia, it was reported that during 2010 to 2011 84% of local adoptions were ‘open’. A percentage of this size makes it is clear that a majority of parents adopting their child out are opting for an adoption that involves contact with the child. In instances such as these, there may be scope for a biological parent to develop and nurture a relationship with the child which may result in behaviours constituting substantial maintenance or support to the child.
If you require assistance, or legal advice in relation to your circumstances, please contact us.
Disclaimer
The information in this article is of a general nature and not intended to be specific legal advice. Please seek the opinion of a qualified professional to advise you of your situation.