What is the position of a child claiming on an estate who is born outside of a marriage?

In 2018 in the case of Estate Hemmes: Cameron v Mead the court was petitioned to make orders as a Family Provision Act claim under the provision of the Succession Act that would permit a child born outside of the marriage of the deceased to receive a financial benefit.

The facts of the case may be summarised as follows:

  • The will of the deceased made provision for bequest to the two named children of his marriage and excluded the child born to a woman with whom the deceased had conducted an extra marital affair.
  • The deceased did not acknowledge that the claimant was his child, although DNA testing established the likelihood of paternity.
  • The deceased purposely excluded the claimant as a child from his life.
  • There was an absence of a social relationship arising as a result of a dispute as to paternity despite the fact that the claimant as a son desired a relationship. The claimant had been deprived of the benefit of paternal association.
  • During his lifetime the deceased paid to the mother of the child adequate sums representing child support.  No moneys were ever paid to the claimant as a son.
  • The claimant was recognised as an eligible beneficiary of the estate of the deceased as a child under section 57 Succession Act.
  • The claimant was left without adequate provision from the estate of the deceased for his maintenance, education or advancement in life.

How did the court approach the issues?

  • The court confirmed that the mere fact of paternity is not enough to justify a grant of relief as a family provision claim.
  • The court considered that the claimant had carved his way in the world without any love or support from the father and only parental rejection.
  • The court was required to consider factors in section 60 Succession Act which included:
    • Any family or other relationship between the claimant and the deceased
    • The nature and extent of any obligations or responsibilities owed by the deceased to the claimant
    • The nature and extent of the estate of the deceased
    • The financial resources and financial needs of the claimant
    • If the claimant is cohabiting with any other person then the financial circumstances of that person
    • Any physical, intellectual or mental disability of the claimant
    • The age of the claimant
    • Any provision by the deceased for the claimant during the deceased’s lifetime or from the estate of the deceased
    • Any evidence of any testamentary intentions of the deceased
    • Whether the claimant was being maintained by the deceased before the death of the deceased
    • Whether any other person is liable to support the claimant
    • The character and conduct of the claimant before and after the death of the deceased
    • Any other matter the court considers relevant

What was the outcome?  a good news story

  • The court determined that the claimant was entitled to a legacy in the sum of $1.75 m
  • The court took into account the following factors:
    • the deceased’s “moral duty” to make provision for the claimant,
    • the size of the deceased’s available notional estate (the estate had been distributed) and the claimant’s aspirations in life


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