Inheritance problems

Contributed by Maree van der Kwast and current to 1 September 2005

ADOPTED CHILDREN

Since 1971 adopted children have been treated as if they were natural children born of the deceased for the purposes of a will or for the intestacy provisions. That is, the words “child” or “children” include adopted children. The one qualification to this occurs when an adopted child was adopted after the remarriage of the child’s surviving parent (the surviving parent being the spouse of the deceased). In this instance the child is considered to be the child of the deceased and not of the new adopters for the purposes of the deceased’s will or intestacy.

“ILLEGITIMATE” CHILDREN

All children, whether adopted, legitimate or illegitimate, are treated the same. In relation to illegitimate children paternity must have been admitted or proven during the lifetime of the deceased. This only applies to wills signed after 1 January 1973.

STEP-CHILDREN AND HALF-BROTHERS AND HALF-SISTERS

A step-child is not considered the “child” of the deceased and thus does not receive any interest in the deceased’s estate as a “child” either in the will, or if there was not will, in intestacy.

Reference merely to “brother” and “sister” in a will generally includes a gift to a half-brother or sister. This however is a question of the interpretation of the will.

Where there is no will, i.e. intestacy, the Administration Act 1903 draws no distinction between full and half-blood, so a half-blood brother or sister would qualify in the statutory order of distribution to his or her half-brother’s or half-sister’s estate.

DE FACTO SPOUSE

If the deceased died before December 2002 a de facto spouse is not regarded as a “spouse” in the administration of estates. They are not included in the statutory order on intestacy so they do not inherit in those circumstances.

To overcome this, a will must be made which includes specific mention of the de facto spouse. In certain cases a de facto spouse can make a claim under the Inheritance (Family & Dependants Provision) Act 1972 (WA).

If the deceased died after December 2002 a de facto spouse is regarded as a “spouse” in the administration of estates.

What is a de facto relationship?

In deciding whether a de facto relationship exists, the law sets out a number of factors:

• the length of the relationship;
• whether the people have resided together;
• the nature and extent of common residence;
• whether there is, or has been, a sexual relationship between them;
• the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
• the ownership, use and acquisition of their property (including property they own individually);
• the degree of mutual commitment by them to a shared life;
• whether they care for and support children;
• the reputation, and public aspects, of the relationship between them.

The definition applies to all couples. It makes no difference what sex or gender the people are. This includes gay, lesbian, transgender and intersex people. The definition still applies if one or both of the people is married to someone else, or in another de facto relationship.