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Can a Foster Child Contest A Will (NSW)?

A person who is now, or was once, a foster child of a testator can contest their will under certain conditions. Specifically, the foster child must currently or previously have been a member of the deceased’s household who was dependent on the deceased at some point in the past. This article explores how a foster child can contest a will in NSW, with reference to a recent case study.

Definition Of Foster Child

In this article, the term “foster child” refers to individuals who currently are or were once in foster care in NSW.

In Australia, foster care is part of the home-based care system that provides care for children who cannot live with their parents. A child can be in foster care while living with unrelated foster carers or the child’s own relatives (also known as kinship care). When a foster child has spent much of their life with a particular foster family, that child may expect provision in a foster parent’s will.

Can A Foster Child Contest A Will In NSW?

The Succession Act 2006 allows only specific categories of people to contest a deceased’s will through a Family Provision Claim. Sometimes it can be confusing to understand which family members are entitled to claim under this legislation. For instance, the legislation does not classify a foster child as a legal “child” of the deceased. That is not to say that a foster child has no avenue to make a family provision claim, but they must prove that they qualify under other eligibility criteria.

How Can A Foster Child Contest A Will In NSW?

To contest their foster parent’s will, a foster child needs to establish that they were at some stage a dependent of the deceased and a member of the deceased’s household.

Establishing Dependence

Under succession law in NSW, dependence refers to a person’s reliance on someone for at least some of their needs. To establish eligibility, a foster child needs to prove that they were financially or materially dependent on the deceased at some point. Common law precedent suggests that a claimant must establish more than a minimal level of dependence to claim against the estate. For example, a foster child might depend on the deceased for housing, or the testator may have provided a generous living allowance. Every case will be unique, and the court will assess the relationship between the foster child and the deceased on its own characteristics.

There is a second criterion that a foster child must satisfy to contest a will in NSW. The foster child must have lived in the deceased’s household at some time in the past. The cohabitation requirement should not be a problem as a foster child usually moves into the home of their foster family. An adult who lived with the deceased as a foster child is still eligible even if they moved out of the residence when they aged out of care at eighteen. There is no minimum period of residency, but the longer the cohabitation, the greater the chance that a foster child will successfully claim against the estate.

Can A Foster Child Successfully Contest A Will In NSW?

The NSW Supreme Court assesses a foster child’s claim against the standard criteria. The court also weighs the claim against the rights of the existing beneficiaries and other claims against the estate.

A former foster child should consider lodging a claim if they were unfairly excluded from a will, or even if they have been included but feel like they received insufficient provision. The former foster child can file a claim with the court for assessment against statutory criteria. The court will typically assess whether there are factors about the relationship with the deceased that indicate that the foster child is a reasonable object of testamentary intentions, such as:

  • The closeness of the relationship between the foster child and the deceased during the foster period and after;
  • Whether the foster child was a permanent member of the family;
  • The age when the foster parent took over care of the foster child;
  • The foster child’s financial circumstances and current and future needs;
  • Whether the foster child contributed to the deceased’s estate; and
  • The extent of financial, emotional and educational support that the deceased extended to the foster child during their life.

Time Limits

A foster child who can establish eligibility to contest a will must do so within the statutory time frames. In NSW, a claimant can only make a Family Provision Claim in the year after a testator passes away. The court occasionally makes an exception for a late application if there is exceptional justification for the delay.

Case Study

In Hamilton v Moir [2013], the NSW Supreme Court found a foster child eligible to claim against her foster mother’s estate and awarded her considerably more than her original provision under the testator’s will. The testator left the bulk of her $885,000 estate to her two biological sons and a modest cash bequest to her former foster child Vera. Vera made a Family Provision Claim against the estate on the basis that she had lived in the deceased’s household for 18 months as a foster child and was, for some time, financially dependent on the deceased. The court heard evidence that the relationship between the two remained close and that the foster child treated the deceased as a mother keeping in regular contact through visits, calls and letters. The court accepted that the plaintiff needed a larger provision from the estate due to her age, health and financial circumstances. The court ordered that Vera receive a lump sum of $80,000 and ordinary costs from the deceased estate.

A foster child needs to be aware that even if they can prove eligibility to contest a will, it does not mean that they will be successful in their claim. The Supreme Court may decide that other beneficiaries or claimants have a greater claim to the deceased estate. Please contact the contested wills team at Armstrong Legal on 1300 038 223 if you need any advice on contesting a will in NSW or the eligibility of a foster child to claim against an estate.

Dr Nicola Bowes

This article was written by Dr Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first class honours from the University of Tasmania, a Bachelor of Laws with first class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade working in higher education, Nicola joined Armstrong Legal in 2020.

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