Foster children are eligible to contest a deceased’s will if they were wholly or partly dependent upon the deceased at any time during their life, and if they also lived as a member of the deceased’s household. While foster children may be technically eligible persons, it has always been very difficult for them to win a contested Will dispute when it goes to Court, and even more challenging for them to be awarded a large lump sum. This is why this particular case is both significant and special because it demonstrates that eligible foster children can win contested Will disputes even when the odds are stacked against them; provided they have a good legal team backing them every step of the way.
Our client was cared for by the deceased and her husband as a young foster child, for around 18 months, during which time our client was a member of the deceased’s household. This meant our client was eligible to contest the will under the Succession Act (NSW) 2006. At the time of death, the deceased’s estate was estimated to be around $900,000 in total. Our client was named in the deceased’s Will, but was only allocated a one third share of the proceeds of the deceased’s bank accounts, building society accounts and any cash in hand. The value of the bank proceeds was estimated to be $5,684 in total. Our client was only entitled to one third of that amount under the Will; however, the Executors (the deceased’s two sons) issued our client a cheque for $5,684 “as a gesture of goodwill”. The Executors did not disclose any cash at hand, and had previously withdrawn money from the deceased’s bank accounts.
Given the size of the estate, the small amount of provision for our client was inadequate, especially since our client had a long and continuing association with the deceased after the foster period ended. Unsatisfied with the cheque from the Executors, our client instructed us to contest the Will within the 12 month time limit prescribed by the Act. When the dispute went to Court, it was determined that the amount given to our client by the Executors was not sufficient to ensure our client’s proper maintenance or advancement in life. The Court took our client’s age and health into consideration and determined that a lump sum of $80,000 would be an adequate amount of provision in addition to the amount initially agreed to be given to her. The burden of the provision to our client was ordered to be split evenly between the Executors. The Court also ordered that our client’s legal costs should be paid out of the deceased’s remaining estate.
In the end, by successfully contesting the Will, our client went from receiving a cheque for $5,684 to receiving a lump sum of $85,684. We helped our client receive a legacy over 15 times better than what she was due to receive from the estate.
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