Unborn child ineligible for estate claim

06:50, Dec 19 2013

A child conceived but not born when his mother married his stepfather cannot claim from his dead stepfather's estate because he was not "living" when they wed, the Supreme Court has ruled.

The child was born in 1995, seven months after his mother married a man who was not his father.

The mother and stepfather died in a car accident in April 2000 when the child, who has special needs because of an intellectual disability, was 4 years old.

Both made wills at the time of their wedding that provided for the child's half-brother, the mother's son from a previous relationship, who was 10 at the time of the wedding.

The younger child was not provided for in the couple's wills, but had a claim under the Family Protection Act out of his mother's estate, valued at $1,800,000.

There was evidence the stepfather gave instructions for a new will, which would have benefited the brothers equally, but it was not drawn up by his solicitors before the stepfather's death, the Supreme Court decision said.


The elder brother was the sole beneficiary of the stepfather's estate, valued at $2,200,000, executed the day after the wedding to his mother.

The act states that a stepchild is eligible to claim from their stepparent's estate if they were being supported by them at the date of the stepparent's death, which the Supreme Court said the child fulfilled.

The younger brother lived with the couple from his birth until their deaths, and was treated by his stepfather as a child of the family, the court said.

The High Court and Court of Appeal had held the child did not fall within the definition of "stepchild" in the act because he was not living on the date his mother married his stepfather.

On appeal to the Supreme Court, it was argued the benefit of the will should be extended to an unborn child.

That would have required the child, conceived but not born, to be deemed "living" on the date of the wedding.

There is no equivalent provision in law that requires a natural or adopted child to be living on the date on which the deceased married the child's parent, and other legislation explicitly includes a child conceived but not yet born at the relevant time.

Despite this, unborn children were excluded from the legal definition of "living" in the act, making the child ineligible to claim from his stepfather's estate, and the appeal was dismissed.

By a majority of three to one, the Supreme Court justices held extending the definition of eligibility would create anomalies with how children conceived after the date of the wedding were treated under the law.

The court said if Parliament had intended unborn children to be included as "stepchildren" under the Family Protection Act, it could have done so.

Justice Glazebrook disagreed with the majority opinion, and would have held an unborn child is "living" at the specified date, on the basis that "born" is not the natural sense of "living".

Fairfax Media