Expertise, Trust, Wills, Estates and Enduring Powers of Attorney

Adopted Child’s Rights Against Birth Parents’ Estate

Although an adopted child will obviously always retain a connection with their birth parents biologically, the same cannot be said for their legal connection.

Under New Zealand law

There are three ways you could claim an interest in an estate if you are not provided for in the deceased’s Will. The first is the Family Protection Act 1955, the second is the Law Reform (Testamentary Promises) Act 1949, and the third is the Property (Relationships) Act 1976. The Law Reform (Testamentary Promises) Act is relevant where the person claiming an interest in the Estate was promised to be included in the Will in exchange for providing services to the deceased. The Property (Relationships) Act is relevant for marriages, civil unions and de facto relationships.

The purpose of the Family Protection Act is to make provision in the deceased’s Estate for persons who the Court thinks should have been provided for (although were not mentioned in the deceased’s Will). Only certain persons may make such an application, including a child of the deceased.

However, the Adoption Act 1955 changes the legal relationship between an adopted child and his or her birth parent “for all purposes, whether civil, criminal, or otherwise”, unless specifically excepted by statute. When an adoption order is made, the child ceases to be the child of their birth parents for legal purposes. Orders relevant to the provision of financial support from a birth parent may still be available if the adopted child is under the age of 6 years. However, unless the adoption has taken place after the birth parent’s latest Will was signed, the child will not be able to claim an interest in the Estate by way of being a birth child.

The original policy reason behind the Adoption Act was to ensure that children who were at the time referred to as “illegitimate” would become “legitimate”, as if born into the adoptive couple’s family. The adoptive child would lose his or her “illegitimate” status, the adoptive parents would have a child for all purposes, and the birth parents would no longer have any legal connection to their child and their identity as birth parents was secret.

The government, recognizing that this infringed the adopted child’s right to know their genetic origins, slightly retracted this definitive stance by passing the Adult Adoption Information Act 1985. The Adult Adoption Information Act allowed children adopted after 1 March 1986 the right to know the name of their birth parents. Birth parents who adopted out their children before 1 March 1986 have the option to keep their identity secret or reveal their identity.

The Adoption Act 1955 remains unchanged in all other respects. It still remains that for all legal purposes, including for the purposes of estates, an adopted child is deemed to cease to be the child of his birth parents.

This is an unfortunate result for adoptive children looking to claim in their birth parents’ estates, however the legislation, and the Supreme Court’s interpretation of the legislation, has at least provided clarity on this area of the law.

Adoptions according to Maori custom

The Adoption Act states that no adoption in accordance with Maori custom shall be of any effect, whether in respect of succession or otherwise. The adoptive child may therefore have continuing rights against his or her birth parent.

Te Ture Whenua Maori Act 1993 provides a mechanism for whangai to receive beneficially under their adoptive parents’ Wills. Whangai means persons adopted in accordance with tikanga Maori (Maori customary law).

The Maori Land Court may determine whether a person is or is not to be recognised as having been a whangai of a deceased person. If the Maori Land Court determines a person is to be recognised as whangai, it may order that the whangai be entitled to succeed to Maori freehold land as if they had been the child of the deceased, and/or that the whangai shall not be entitled to succeed to their birth parents’ interests in Maori freehold land.

For assistance in finding out how the law applies to your specific circumstances, please contact Cathy Fisher or Lauren Corbett.