Adoption, Intestacy and the Biological parent.

In Australia, following adoption, the adopted child becomes a full member of the adopting parents’ family and generally, all prior legal familial relationships cease to exist.

In most jurisdictions, this applies equally to intestacy so that where a person has been adopted, previous family relationships have no recognition on intestacy.

Background

Werner Ihenfeld was born in Tasmania and adopted by Werner and Anna Ihenfeld when he was 3 days old in June 1963. The Ihenfeld’s became Werner’s adoptive parents under the Adoption of Children Act 1920 in September of that year.

Following the deaths of his adoptive parents in the mid-1980s Werner sought out his biological mother Dianne Zimmerman; for the next thirty years, they enjoyed a mutually loving and caring relationship that often exists between a child and parent.

Werner died intestate without leaving a spouse or issue with the result that under s29 of the Intestacy Act (“the Act”)

The parents of an intestate are entitled to the whole of the intestate estate if the intestate leaves – (a) no spouse; and (b) no issue.

(2) If there is only one surviving parent, the entitlement vests in the parent and, if both survive, it vests in equal shares.

If there was no surviving parent the estate would pass to other relatives.

As a result of the intestacy and uncertainty as to the identity of the next of kin Letters of Administration were granted to the Public Trustee on 1 March 2019.

The matter

Dianne applied to the Supreme Court of Tasmania for the determination of whether as a result of both their loving relationship and biological relationship, gives her a right of distribution of a parent under the Act.

Under s10 of the Act an adopted child is considered to be the child of the adoptive parent or parents; biological relationships that are inconsistent with the relationship created by adoption, are to be ignored.

The Act does not provide for reversion to the biological relationships following the death of adoptive parents or to evaluate the existence, strength or type of family relationships.

The decision

In dismissing the application the Court found that Dianne was not Werner’s parent within the meaning of the Act and therefore was not entitled to a distribution from the intestate estate.