Introduction

In New South Wales, foster kids can actually challenge a will. A foster child might have the right to dispute a will and seek a share of an estate if some particular conditions apply.

To be eligible to contest a will in NSW, a foster child must demonstrate that they were dependent on the deceased at some point and that they lived as a member of the deceased’s household. This guide will explore the circumstances where a foster child can contest a will and the factors that are considered in family provision claims.

Defining a Foster Child in NSW Will Contests

Foster Child Definition for Succession Act 2006 (NSW)

In the context of contesting a will in NSW, the term “foster child” specifically refers to individuals who are currently in foster care or were in foster care in NSW at some point. Under the Succession Act 2006 (NSW), certain individuals, including foster children under specific circumstances, may be eligible to make a family provision claim against a deceased estate if they believe they have not been adequately provided for in the will.

It is important to note that the Succession Act 2006 (NSW) does not classify a foster child as a legal “child” of the deceased. This distinction is significant because it means that foster children must meet additional criteria to be eligible to contest a will, specifically demonstrating dependence on the deceased and having been a member of the deceased’s household. These added requirements exist because foster children are not automatically afforded the same rights as biological or adopted children under succession law.

For a foster child to be eligible to contest a will, they must demonstrate two key points:

1. Dependence on the deceased: The foster child must show that they were once dependent on the deceased.
2. Household membership: They must have lived as part of the deceased’s household.

These criteria ensure that only those foster children who had a significant relationship and dependence on the deceased can make a valid claim, distinguishing them from other individuals who may have had a more casual association with the deceased.

Establishing Eligibility to Contest a Will as a Foster Child

Dependence on the Deceased

To be eligible to contest a will as a foster child in NSW, it must be established that the foster child was dependent on the deceased at some point. This is a crucial aspect to demonstrate. Under succession law in NSW, dependence refers to a person’s reliance on someone for at least some of their needs, whether financial or material. It’s important to note that this dependence doesn’t need to be ongoing at the time of the deceased’s death, but must have existed at some point in the past.

A foster child needs to demonstrate:

• Financial dependence on the deceased
• Material dependence on the deceased

For example, dependence can include relying on the deceased for housing or a generous living allowance. The courts will assess the level of support provided by the deceased. Crucially, common law precedent dictates that this dependency must be more than a minimal level to successfully make a family provision claim against the deceased estate.

Membership of the Deceased’s Household

The second key criterion for a foster child to contest a will in NSW is demonstrating that they were a member of the deceased’s household at some stage. This requirement is generally straightforward for foster children, as foster care, which also includes kinship care in NSW, inherently involves living within the foster family’s home. Furthermore, for the purposes of contesting a will, the definition of a “foster child” is broad.

Even if a foster child is now an adult who has aged out of care at eighteen and no longer lived with the deceased at the time of their passing, they can still be eligible if they previously resided in the deceased’s household as a foster child. While there is no minimum period of residency, the longer a foster child lived with the deceased as part of their household, the stronger their claim to contest the will may be.

Factors Considered by the NSW Supreme Court in Family Provision Claims by Foster Children

Nature of the Relationship with the Deceased, as seen in Hamilton v Moir (2013) NSWSC 1200

The NSW Supreme Court carefully assesses the relationship between the foster child and the deceased when considering a family provision claim. This assessment includes evaluating the closeness of their connection both during and after the foster period.

For example, in the case of Hamilton v Moir (2013), the court examined the relationship between Vera, the foster child, and her foster mother. Even after Vera moved out of her foster home, she maintained a close bond with her foster mother through regular visits, calls, and letters. This ongoing connection demonstrated a relationship that extended beyond the formal foster care arrangement. The court considered this maintained contact as a significant factor in Vera’s successful claim against her foster mother’s estate.

Foster Child’s Needs and Circumstances, exemplified also by Hamilton v Moir (2013)

In addition to the nature of the relationship, the NSW Supreme Court also considers the foster child’s needs and overall circumstances. This evaluation includes:

• Financial situation: Assessing both current and future financial needs.
• Contributions to the estate: Evaluating any contributions the foster child may have made to the deceased’s estate.

In Hamilton v Moir (2013), the court acknowledged Vera’s need for a larger provision from her foster mother’s estate due to her age, health, and financial circumstances. Ultimately, the court awarded Vera a lump sum of $80,000, recognising her needs and the close relationship she maintained with the deceased. This case highlights how the court balances the foster child’s needs against the entitlements of other beneficiaries when making decisions about family provision claims.

Time Limits for Foster Children to Contest a Will

12-Month Limitation Period

In NSW, foster children must adhere to specific time limits when making a Family Provision Claim. A claimant is required to file their claim within twelve months from the date of the testator’s death. This statutory timeframe ensures the efficient administration of deceased estates. Therefore, it is crucial for an eligible foster child to be aware of and comply with this deadline.

Extensions of Time

Under certain exceptional circumstances, the NSW Supreme Court may grant an extension to the 12-month limitation period. If there is a valid and exceptional reason for the delay in making a claim, the court has the discretion to allow a late application. However, such extensions are not routinely granted. It is advisable for foster children to seek legal advice promptly if they are considering contesting a will. This ensures they comply with the statutory timeframes or can determine if grounds for an extension exist.

Conclusion

In NSW, it is indeed possible for a foster child to contest a will if they meet specific criteria. To be eligible to contest, a foster child must demonstrate that they were dependent on the deceased at some point and lived as a member of the deceased’s household. The NSW Supreme Court will assess various factors, including the nature of the relationship and the foster child’s needs, when considering a family provision claim.

Understanding the complexities of contesting a will can be challenging, especially in sensitive situations involving foster families. If you are a foster child considering disputing a will or believe you may be eligible to make a family provision claim, it is essential to seek expert legal advice. Contact our experienced legal team at PBL Legal today to explore your options and understand how we can assist you with your claim against a deceased estate.

Frequently Asked Questions