Jon Snow and the presumption of parentage in family provision claims – S02E08 – Battle of Wills Video Series

Transcript

Adrian Corbould: Jon Snow, Game of Thrones, contested wills, how are they related? Let’s find out.

Hello, I’m Adrian Corbould, Accredited Specialist in Wills & Estates at Turnbull Hill Lawyers, with Battle of Wills where I talk about contested wills and estates, generally. It’s no secret that adult children are the predominant claimants in family provision claims.

As we’ve talked about before, to make it such a claim, you’ve got to be eligible, married spouse, de facto, child, other categories, but what is a child? How is it deemed that someone is a deceased person’s child? Well, it all comes down to the presumption of parentage and the accepting that someone is a child. The Status of Children Act, this all applies to New South Wales only, has several categories of the presumption of parentage. That’s a court assumed fact that someone is a child. I’ll go through six of them.

The first one is marriage. Let’s say a couple is married from here to here. If a child is born within this time period, they are deemed to be a child of that couple. On the death of one of the members, if a child is born within 44 weeks of that death, also deemed to be a child of that couple. There’s more to that but we’ll move on.

Second one is children born in a de facto relationship where there’s cohabitation. If a couple is cohabiting and they’re not married, let’s say they move in together on the first of January and they split up and moved out on the 31st of December. If a child is born within 44 weeks of that first date, that child is deemed to be a child of that couple. 44 weeks from first moving in.

Let’s say that couple break up, move out on the 31st of December, and a child is born within 20 weeks of that breakup, that child is presumed to be a child of that couple. More than that, not presumed. The relevance to Jon Snow in this is this is not Game of Thrones. Under this act, all children are deemed equal. It doesn’t matter if they are ex-nuptial children, that is children born out of wedlock, where the parents are not married or nuptial children, where the parents are married. The court does not view children any differently. They all have equal status. It’s a bit of a sidebar.

Third one, presumption of parentage by the registration of birth. Birth certificate. Birth certificate is the most common way someone establishes that they are the child of a particular parent, however, these are rebuttable presumptions. That means, it’s presumed that that person is the child unless it can be rebutted or trumped by better evidence, DNA evidence. Quick example, I had a matter where someone had a father on their birth certificate. It was later proven by DNA evidence that they were not the father. They did not proceed with a claim.

Fourth one, presumption of parentage by court finding, court order. If a court orders that someone is the child of a particular person, they’re the child. In this instance, it’s an irrebuttable presumption. It can’t be trumped by something else. The court has made that order.

Fifth one, presumption of parentage by acknowledgment. If a man completes a formal acknowledgement of paternity form or similar, that man is deemed to be the parent of that child. Again, that can be rebutted if there’s superior evidence.

Sixth one, presumption of parentage from fertilization procedures, IVF, matters like that. I’m not going to get deep into this one or even cover it, because it is just so deep, but it covers when couples are married, de facto, there’s donor eggs, donor sperm, things like that, but it presumes who is the parent in those circumstances.

As you can see, this is a very complicated area, and I’ve just given a very broad brush over all of it. Each of those things that I have mentioned has finesse parts to each of them, but it does come up quite a bit in contested estate matters, where a claimant says, “I’m a child of this man. I, therefore, am eligible,” and that eligibility is disputed. They may have the presumption that they are that person’s child, but as I’ve indicated, in most of those situations, it can be rebutted if there’s stronger evidence that trumps that presumption, and that’s what the court finds, they may not be eligible.

As indicated, very broad brush. If someone actually has an issue relating to parentage, they should be seeing a lawyer because this area is quite detailed.

I hope this has been of some use. Talk again next time.