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Inheritance dispute over child’s state-appointed will

Inheritance disputes are not always led by the offspring and spouses who are left behind when an adult passes away. In some contesting wills cases, the estate in question is held by a minor.

Generally, when a child dies their assets are passed onto their parents, through the guidelines of the 2006 Succession Act. However, a recent case seen by the Supreme Court of NSW shows how this process is not always in the best interests of the family and the child.

A 13-year-old NSW girl has been at the centre of an inheritance dispute after the Department of Family & Community Services actioned the creation of a will.

The child suffers from a disability which impacts on her testamentary capacity to decide on her own estate, which comprises of approximately $50,000. This money was awarded to the child as a trust under the Victims Support and Rehabilitation Act in 2011.

In 2014, the Department decided that it would be appropriate for the child’s estate to be divided evenly between her foster parents and the hospitals that had cared for her in the past. However, the girl’s biological mother did not agree with this will, although she did acknowledge that a statutory will needed to be created.

The mother then contacted contesting wills lawyers, in order to access a fair portion of her daughter’s estate, in the event of her death.

In order to reach the best decision for the child and all parties involved, the Supreme Court investigated the relationship between the mother and daughter and also the reasons why the child had been placed in foster care.

It was found that the mother had a long history of drug abuse and, while not directly responsible, was acknowledged to be at least partially to blame for an instance of physical abuse on the child. With a history of negligence, the mother was deemed an unfit and unsafe carer for her daughter. It was for this reason that the child was housed with the foster family.

However, despite the troubling relationship between mother and daughter, the Supreme Court acknowledged that the original will did not reflect what they believed the child’s wishes would be if she held testamentary capacity.

It was therefore decided that the statutory will should be altered to better represent what the daughter would reasonably have wanted. For this reason, the estate will now be divided evenly between her foster parents and her mother, with no provision made for the hospitals that cared for her.

© 2021 
Contesting Wills
 — Gerard Malouf & Partners

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