Illegitimate children, ex-nuptial children – can they inherit?

Illegitimate children or ex-nuptial children are those born outside of marriage. Changes to the law mean that the inheritance rights of illegitimate children are equal to those of legitimate children.  This means they can and are entitled to inherit.  It also means they can potentially contest a will under family provision legislation. 

What happens if no will was left, that is the deceased died intestate and left an ex-nuptial child? Who inherits then? Can an ex-nuptial or illegitimate child be eligible under succession law to make a claim on a deceased parent’s estate?

This article is an outline of the inheritance rights of illegitimate children (mostly referred to now as ex-nuptial children) under Australian succession law.

Main points on illegitimate children and inheritance:

• • Changes to the law through status of children legislation mean that illegitimate children have equal status and the same rights as legitimate children.
  • As a result illegitimate/ex-nuptial children:
    • can inherit property,
    • are eligible to apply for family provision, but proof of paternity is required;
    • can inherit under the rules of intestacy – when no valid will is left.
  • An ex-nuptial child’s relationships are not dependent upon whether their mother and father are or were married to each other. 

Can ex-nuptial or illegitimate children inherit?

Illegitimate children or ex-nuptial children are those born outside of marriage.

Changes to the law mean that the inheritance rights of illegitimate children are equal to those of legitimate children. So this means they can inherit.

Status of children legislation throughout Australia (see statutes and links listed below) makes illegitimate children equal in status to legitimate children.  The effect is that ex-nuptial children have the same rights of inheritance under succession law as legitimate children and are entitled to inherit.  Their legal status is not dependent upon whether their father and mother were married when they were born.

An example of status of children legislation is from the Tasmanian Status of Children Act 1974 which states in section 3, ‘All children to be of equal status’ that:

(1)  For all purposes of the law of the State the relationship between every person and his father and mother shall be determined irrespective of whether the father and mother are or have been married to each other and all other relationships shall be determined accordingly.

Making gifts to “my children” in a will

The effect on inheritance rights of the status of children legislation is that if someone with both legitimate children and an ex-nuptial child leaves a gift to “my children” in their will, it would be taken to mean that they intended both children be included in the distribution of the gift.

Gifts to “issue”

Similarly if using the word “issue”.  Issue means descendants of all degrees; children from all generations.  Both legitimate and ex-nuptial children would be counted the same. In the ACT the Wills Act 1968 (ACT) provides that a reference in a will to issue of a person shall be interpreted to refer to all such issue, whether legitimate or illegitimate, unless there is a different intention in the will.  Read more on children and issue in wills by clicking here.

Can an ex-nuptial child be excluded from a will?

A willmaker can, if they wish, seek to exclude an ex-nuptial child from inheriting property under their will, however the legislation requires they should state their intention expressly in the will.

Care is needed on expressing such an intention, as the legislation makes plain in some jurisdictions that words such as  “legitimate” and “lawful” in describing the parent – child relationship won’t be enough. Everyone’s circumstances are different and specific legal advice should be sought.

Excluding an ex-nuptial child from a will raises the question of the prospects of a will challenge, and whether an illegitimate child may claim on a deceased parent’s estate.

Are ex-nuptial, illegitimate children “eligible” to claim family provision?

Ex-nuptial children are legally entitled to apply to the court to hear their case for provision out of a deceased parent’s estate, whether under a will or if no will under the operation of the rules of intestacy.  Whether legitimate or illegitimate children are eligible to apply for family provision from the deceased estate of a parent under the legislation in each state and territory.  Proof of parentage, paternity is required by the law however (see below) and in some places this might require a special order or declaration from the Supreme Court.

What if someone claims to be an ex-nuptial child and lodges a claim?

As mentioned, they have to produce evidence to demonstrate conclusively to the Court that the deceased was their parent. An application won’t proceed unless this has been determined and depending on the particular Court, a declaration of parentage issued.

Illegitimate children – determining paternity and parentage

Proof of paternity and parentage need to be established if an ex-nuptial child wishes apply for provision out of the deceased’s parent estate.   That a parent child relationship existed must be demonstrated for the application to proceed.

The legal requirements for determining paternity or parentage varies somewhat between the states and territories and again legal advice is essential.  Generally though the requirements are along the lines of the following:

• Often parentage or paternity has been admitted, in one way or another during the parent’s lifetime.
• Whether the father and mother were married to each other or living together for a period up to and including when the child was born;
• Whether they were in a registered relationship;
• Paternity or parentage was admitted or established during the father’s or parent’s lifetime; the parent signed a document at some stage stating they were the father/mother of the child, such as the child’s birth certificate;
• Seek a declaration of parentage or paternity from the Supreme Court where applicable.  This is a special type of court order issued by the Court if it is satisfied on the evidence before it that the alleged relationship exists.

Once a parent-child relationship is established then other relationships are worked out from that.

And what about the mother?

Some legislation refers only to the father, to paternity, other statutes to both.  Interpretative legislation such as the various Interpretation Acts contain rules assisting interpreting statutes. One such rule is that a reference or word in a statute to one gender is inclusive of every other gender.

When an illegitimate or ex-nuptial child’s parent dies without a will (intestate)

If an ex-nuptial child dies before their parents and does not leave a valid will, who is entitled to take their property? Can relatives of the ex-nuptial child such as a surviving parent, or the ex-nuptial child’s own children, take or inherit their ex-nuptial child’s property?

It seems they can.  The status of children legislation deals with inheritance of illegitimate children on intestacy – either if the child didn’t leave a will or the child’s parent did not leave a will.

The status of children legislation in New South Wales for example makes it clear that if any relatives of an ex-nuptial child including their parents, die without a valid will (intestate), the ex-nuptial child is entitled to inherit.  See subsection (2) of section 8, ‘Rights of exnuptial children and their relatives on intestacy’, Status of Children Act 1996 (NSW).

When illegitimate children die without leaving a will

If an ex-nuptial or illegitimate child dies without leaving a will resulting in an intestacy, the status of children legislation and other legislative amendments provide for their relatives (parents, any children of the ex-nuptial child) to take the deceased ex-nuptial child’s property in accordance with the intestacy rules.  From the same source above as an example,  sub-section 8(3) of the Status of Children Act 1996 (NSW) states that:

(3) If an exnuptial child dies intestate in respect of all or any of the child’s real or personal property,any relative of the child (including a parent of the child) is entitled to take any interest in that property that the relative would have been entitled to take if the parents of the child had been married to each other when the child was born.

Links to status of children legislation and relevant provisions in other succession law statutes are listed below for interest.  In some states the legislation is not retrospective.

• Status of Children Act 1996 (NSW), sections 5 and 6;
• Status of Children Act 1978 (QLD), s 6;
• Status of Children Act 1974 (VIC), sections 3 and 4;
• Status of Children Act 1974 (TAS), sections 3 and 4;
• Status of Children Act 1978 (NT), s 4;
• Parentage Act 2004 (ACT), sections 38, 39 and the Wills Act 1968 (ACT), s 31A;
• Wills Act 1970 (WA), s 31, under the part “Illegitimacy”;
• Family Relationships Act 1975 (SA), s 6.

Before legislative amendments

Once it was that inheritance rights for illegitimate children were not recognised under  succession law.  The status of being illegitimate was a ‘legal disability’.  This affected an illegitimate child’s ability to inherit.  They were not treated the same as legitimate children in this respect.  A gift in a will to “my children” would be distributed among  legitimate children only.  Any illegitimate children would miss out.   It would only be if the willmaker specifically named an illegitimate child in the will and made it clear by its terms that they intended the ex-nuptial child to take the gift would that illegitimate child be entitled to take.

B Stead
BHS Legal
Last 28 August 2021