Proving a family relationship to obtain an inheritance


When a person dies, there can sometimes be uncertainty about which family members should inherit from that person. If the person who has died has left a will then there is usually no uncertainty as those persons who are beneficiaries will be named.

In other situations, the ability of a family member to inherit will be dependent upon there being a recognised family relationship. Ordinarily, family relationships are legally documented through the registration associated with birth certificates and marriage certificates. However, sometimes, family relationships are not legally documented – and a person can then ask a court to declare that a family relationship existed, with the assistance of the Family Relationships Act 1975.

Recognition of domestic partnership

Domestic partnership is the current South Australian legal term which has replaced the historical term de facto relationship.

A domestic partnership can arise in two ways. The first is by way of the couple having successfully applied for registration of their relationship under the Relationships Register Act 2016. The second way, under the Family Relationships Act 1975, is that the couple have lived with each other in a close personal relationship and have either lived together for 3 of the previous 4 years or the couple have had a child together. A domestic partnership can be a non-sexual relationship and it can even include a relationship between two close relatives (eg siblings) who live together. Sometimes a shorter period of time living together can be sufficient if a court considers that this is in the interests of justice.

For the purposes of intestacy (which is when someone dies without a will) or where an inheritance claim is to be made against the estate of the person who died, a person who wants to inherit might need a declaration from a court that they were in a domestic partnership with the person who died as at the date of that person's death.

Where the relationship was not registered, a court will take into account many different matters such as how long the relationship had lasted, how long the couple had lived together, the extent of financial dependence or interdependence, the care and support of children, the performance of household duties and the reputation of the relationship.

Recognition of parentage and legitimacy

Under the Family Relationships Act 1975, a child born to a woman during her marriage, or within ten months of the marriage ending (including ending by the husband's death), is presumed to be the child of the woman's husband. The same presumption applies where the man and woman were domestic partners rather than being married.

Where a child is born outside of a marriage, a man is only recognised as the father if he is recognised as the father under a process of legitimation (see below), or the man has acknowledged in birth registration proceedings that he is the father, or a court has decided that the man is the father or the Family Relationships Act 1975 otherwise regards the man as the father.

Where a child was born to parents who were not married to each other at the time of the birth, if those parents later become married then the child may, in some circumstances, be treated as a legitimate child backdated to his or her birth as a result of the Marriage Act 1961. A person can apply to the Supreme Court, Federal Circuit Court or Family Court for an order that declaring that they are a legitimate child of their parents – or for an order declaring that an ancestor or descendant is or was a legitimate person.

Under the Family Relationships Act 1975, where a man executes a document (including a will) where he acknowledges paternity of a child then the man will be presumed to be the father of that child.

If a court is satisfied that a parentage relationship exists, it can make a declaration of parentage. The court will endeavour to allow all persons affected by a declaration to make representations to the court. Where the parent or the child or both have died, the court will require credible corroborative evidence before it makes a declaration of parentage relating to those persons.

Obtaining recognition

A person who wishes to obtain a declaration that a family relationship existed ought to tell the executor, administrator or trustee (of the estate of the person who has died) as early as possible. This is because the executor, administrator or trustee is free to distribute the estate to other beneficiaries if they have not received notice of the family relationship. Similarly, known beneficiaries should also be told as they are entitled to keep their inheritances unless they had received notice of the family relationship. The executor, administrator or trustee can insist that court proceedings to obtain the declaration be commenced within a three month period, after which they are free to distribute the estate if no court proceedings are commenced.

Although an application for a declaration of a family relationship can be made within any of the South Australian civil courts, it is common for such court proceedings to be commenced in the Magistrates Court as that the legal costs associated with that court are the lowest.

When an application is made to a court seeking recognition of a family relationship, the court will require evidence of the relationship. This will include having other family members and friends give evidence to the court. The court may also be assisted by seeing relevant documents, photos and video.

… The ability of a family member to inherit will be dependent upon there being a recognised family relationship. …

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How we can help you

O'Loughlins Lawyers has a team of lawyers who are highly experienced in dealing with deceased estates and conducting estate litigation.

We can assist you by providing you with legal advice about your circumstances and represent you in any inheritance claim, including in any court proceedings that may arise.

Our clients include the full range of parties who can be involved in an inheritance claim. We act for family members who want to make inheritance claims, for family members who want to oppose inheritance claims brought by other family members, for executors or administrators of deceased estates and even for charities who are beneficiaries of deceased estates under the will.

Alf Macolino

Alf Macolino

Michael Spencer

Michael Spencer

Special Counsel
Julie-Ann Sparkes

Julie-Ann Sparkes