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Blood ties

In the Estate of Tasman William John Berghan  raises important questions regarding the legal fiction of adoption and the status of an adopted biological child to seek administration of the deceased’s estate.

As noted at [9] “The effect of s 16(2) of the Adoption Act 1955 is that on adoption, Ms Sabin ceased to be the child of her biological father … and the deceased ceased to be her father. That means that Ms Sabin does not have a legal beneficial interest in the deceased’s estate…”

However, s 6 of the Administration Act 1969 provides that the Court has some discretion regarding who administration can be granted to.

In exercising this discretion the Court recognised the cultural dimension of the application and that notwithstanding her adoption Ms Sabin was able to evidence a deep, cultural connection with her biological whānau. The decision also reflects that in tikanga Māori, an adopted child retains that child’s biological whakapapa connections.

References:

  • In the Estate of Tasman William John Berghan [2020] NZHC 1399

Discussion

2 thoughts on “Blood ties

  1. This is interesting. There has recently been a similar litigation in Queensland and New South Wales, following the death of the natural father of an adopted child. As I understand it, the child has been unable to discharge the New South Wales Supreme Court adoption order made in the 1960s in a case called Re Gordon. http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWSC/2020/673.html?context=1;query=Adoption;mask_path=au/cases/nsw/NSWSC

    Posted by David Marks | August 16, 2020, 2:13 am
  2. Much appreciated. Interesting to contrast the approaches of the court in Re Gordon and Re Berghan.

    Posted by vickiammundsen | August 16, 2020, 1:58 pm

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