Sometimes two little words can make a very big difference. In a recent Queensland Supreme Court decision, those words were ‘as if’.
The case concerned a daughter who had been adopted out as a baby by her biological father but later re-established a relationship with him.
When her biological father died, his Will left her $50,000 from an estate of about $1.5million.
After his death, the daughter applied (in Western Australia) to discharge or ‘undo’ her adoption.
The Western Australian law provided that, once discharged, the position was ‘as if the adoption had not occurred’.
Those words became critical.
The Queensland Supreme Court had to decide whether the biological daughter could therefore be treated as the deceased’s ‘child’ and bring a challenge to her biological father’s estate.
The counter argument was that as the adoption order remained in force at the time of the father’s death, she was not legally the deceased’s child at that time and therefore could not claim.
The court concluded that, subject to proof of biological parentage, she could!
It is an intriguing example of how the law can apply.
Where there’s a Will …
Trent Wakerley, director, Wakerley Legal, Level 3, Ocean Central, 2 Ocean Street, Maroochydore, 5443 9600, wakerleylegal.com.au.
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