Liza Stewart: Did you know that even if Daddy Warbucks had not adopted the orphan Annie she still would have been eligible to bring a claim on his estate?

Hi, I’m Liza Stewart. I’m one of the lawyers in the contested estates team here at Turnbull Hill Lawyers. Today I’m going to be talking about foster children bringing claims on estates. In New South Wales you’re eligible to bring a claim on an estate if you fall into any of the following categories, that includes a spouse, a former spouse, a child that includes adopted children, if you were a dependent grandchild, if you were in a domestic relationship with the deceased at the time of death.

Or in the final category if you were partly or wholly dependent on the deceased at a particular time and a member of that deceased household. This is where our orphan Annie fits in. She was dependent on Daddy Warbucks and she was a member of his household so orphan Annie would have been eligible to bring a claim on his estate but she probably wouldn’t be successful in bringing a claim on his estate and that’s because people who fall into this category also need to show that there are factors warranting.

What are factors warranting? That means that the person needs to show that there are circumstances about their relationship with the deceased that would make them a natural object of their testamentary intentions. That means a person would expect to receive something under the deceased will like a spouse would or a child would.

In a recently decided case, the court said that there are some factors that they’ll look at in deciding whether there are factors warranting for a foster child. These include the age of the child when they went into foster care with the deceased, whether that foster child was a permanent member of that family, the closeness of the relationship of the foster child with the deceased during the foster care period, and whether that relationship was maintained after that foster child left that household.

Finally, they’ll also look at the extent of the support that the deceased has given to that person financially, educationally, and emotionally. For example, a child who has lived with the deceased for many, many years, had a close relationship with them and maintained that close parent child-like relationship with them after they left home is going to have very good prospects of being able to show these factors warranting. Whereas a foster child who perhaps lived with the deceased for a short period of time, even up to many years but when they left home failed to maintain that type of relationship with them, is going to have poor prospects of showing the same thing.

We recently had a case where our client was a foster child of the deceased. The deceased had raised our client from a very young age but he’d never taken the formal step of adopting her. The deceased and our client had had a lifelong, close, and loving, father-child relationship. Unfortunately though the deceased died without a will and this meant that the estate was going to be distributed according to the rules of intestacy. Intestacy is where somebody dies without a will and legislation says who is entitled to receive the estate and the priority of who will receive that estate.

Unfortunately, under the rules of intestacy foster children do not receive anything. Our client was not going to get anything from the estate. Fortunately in this matter, we were able to assist our client to bring a claim against the estate for family provision and she was able to receive a substantial settlement from the estate.

These types of cases can be really complex and much will depend upon the individual circumstances of the case. If you find yourself in a situation that is similar to this, please feel free to contact us at Turnbull Hill Lawyers.

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