17 September 2021
Wills and estates – Foster children
Do foster children have the same inheritance rights as natural and adopted children? Does a will specifically need to exclude foster children?
Thank you for the question.
No, foster children are not considered children for the purposes of intestacy.
They may, however, be eligible to bring a family provision claim if they were a person financially dependent on the deceased person and a member of their household: s 57 of the Succession Act 2006.
If any family provision claim is brought by a foster child excluded from a will the court will balance the testator’s wish that no provision be provided to the foster child against the applicant’s need for provision, in the context of the size of the estate. See, for example, Re Estate of McNamara [2018] NSWSC 1661 where an adult child was expressly excluded in the will.
See the By Lawyers Family Provision Claims (NSW) guide and 101 Succession Answers (NSW) for more information.
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