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Who is a 'Child' in Family Provision Claims?

If you are a child of a deceased person you are automatically eligible to make a claim upon the estate.

If you are a child who has been adopted by a deceased person you are still legally their child. Adopted children are therefore equally eligible to claim on an estate as birth children.

However, an adopted child cannot claim on the estate of its birth parents because he or she ceases to be regarded in law as their legal child. 

If there is doubt surrounding the paternity of a child, simply obtaining a copy of the birth certificate is usually sufficient to absolve such doubt.

If paternity is still in question it is helpful to consider the assumptions about parentage outlined in Part 3 of the Status of Children Act 1996 (NSW). This Act shows the circumstances under which a court will presume a person is the mother or father of a child (unless there is evidence to prove the contrary).

For example:

  • A person is presumed to be a child's parent if the person's name is entered as the child's parent in the Births, Deaths and Marriages Register;
  • A child born to a woman during a marriage is presumed to be a child of the woman and her husband;
  • If a child is born to a woman within 44 weeks after her husband dies, the child is presumed to be the child of the woman and her deceased husband;
  • If a child is born to a woman within 44 weeks after a marriage is ended, the child is presumed to be a child of the woman and her former husband;
  • A child born to a woman is presumed to be a man's child if, at any time during the period beginning not earlier than 44 weeks and ending not less than 20 weeks before the birth, the man and the woman live together;
  • If a married woman conceives via a fertilisation procedure her husband is presumed to be the father whether or not he provided the sperm so long as he consented to the procedure;
  • If a married woman conceives via a fertilisation procedure she is presumed to be the mother of the child whether or not she provided the ovum used in the procedure;
  • If a female in a same sex relationship undergoes fertility treatment with her partner's consent that partner is presumed to be a parent of a child that results from the treatment. 

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