Wills and Estates & Foster Children

At a time when, according to Family and Community Services Minister Brad Hazzard, there has never been a greater need for families to come forward as foster parents a case decided in the Supreme Court of NSW has exposed a risk that most foster parents would not have considered.

The case of Hamilton v Moir [2013] NSWSC 1200 (2 September 2013) shows that even a relatively short period of fostering can leave a family exposed to a challenge to a will by a foster child.

Vera Caroline Hamilton was placed as a foster child with Marietta & Victor Moir on 23 March 1959 and was removed from their care on 23 September 1960. She lived with them on a full time basis, for about 18 months. She maintained contact with Marietta and Victor during their lives (as might be expected).

Victor Moir died in 1988. Marietta Moir died in 2011 having left a will dated 5 March 1981. Vera was given a small legacy in Marietta’s will. The bulk of the small estate (totaling only about $900,000) was left to her two sons. Vera successfully challenged the legacy left to her in the will and was awarded approximately $85,000.

So over 50 years after the period of fostering ended Vera was able to make a successful claim upon the estate of Marietta Moir. Why? Section 57 (e) of the Succession Act 2006 (NSW) makes eligible a category of persons who were, “at any particular time, wholly or partly dependent on the deceased person and at that particular time or at any other time, a member of the household of which the deceased person was a member”.

Sadly that is not the end of the matter. The successful challenge resulted in legal costs of over $200,000 to be paid by the estate which were described by Justice Hallen as seemingly “excessive” and “disproportionate”. In total Vera’s award and legal costs consumed nearly one third of the estate.

The very high costs of litigating an application for provision (a will challenge) should not be ignored when drafting wills and when advising on challenges (whether as applicant or defendant).

It is ironic that at a time when the State is crying out for more fostering volunteers it may be advisable for potential volunteers to carefully consider whether they are putting their estate and therefore their family at risk if they in fact “step forward”.

For more information or advice contact Peaston Legal on 0414 809 616 or email enquiries@peastonlegal.com.au.

“Liability limited by a scheme approved under Professional Standards Legislation. Legal practitioners at Peaston Legal Pty Ltd are members of the scheme.

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