Executor of Will - Children as Wards of the State?

[Linsdilema]

I am a joint executor of my Aunt's will with my cousin. My Aunt died recently and has left her estate to her nieces and nephews in a will she took out in December 2013. She has 2 children however, who were made wards of the state in the 1950s. I dont know if they were adopted. She has never wanted to acknowledge them or contact them. I wonder if they can claim a share or all of the estate. We dont know how to contact them. Her estate is less than $200k.

 

[rebeccag]

G'day @Linsdilema
Which state or territory are you located in?

 

[Sophea]

Hi Linsdelema,

Children of a deceased person are automatically “eligible persons” to make a claim on their parents Estate if they have not been properly provided for in their parents Will. This includes a child who is a ward of the State - i.e. where the child’s needs are being met by the State / an institution - this would not ordinarily prohibit them from making a family provision claim under the relevant state's succession laws.

Difficulties can arise for such a child however when they have to prove that they have a need for provision out of the Estate. This except summarises the position quite well:

1. "Quite often there was no relationship between the deceased and the child on account of the institutionalisation or of the child being made a ward of the State. This difficulty can be overcome by evidence establishing that the lack of such a relationship was not the fault of the child and that the deceased had a moral obligation to provide for the child.
2. Where the child is a ward of the State or institutionalised their needs are met by the State or the institution. This makes it difficult to prove that the child has a need of care and assistance and that such need should be met by the Estate.

The decisions of the Court in these circumstances centres around whether the child has a claim on the Estate for “extra comforts”. These extra comforts can include money for outings or extra clothing. There are numerous Court decisions where a significant bequest has been made from the Estate to meet these “extra comforts” for the anticipated lifetime of the deceased."

An Applicant has

• six months from the death of the deceased person to send to the personal representative of the estate written notice of their intention to make a Family Provision Application, and
• nine months from the death of the deceased person to make the Application to the court, and to either serve the Application or to notify the personal representative of the fact that they have made an Application.

These time limits are one of the reasons that lawyers often advise personal representatives to wait six months before distributing the estate: if the personal representative distributes the estate before this time has passed, the personal representative may become personally liable if an application is made against the estate.

If the child has not sent written notice to the personal representative of the estate within six months of the death of the deceased person, there is nothing stopping the child sending the notice late or from making the Application, however after the six month period, if the personal representative has not received the notice, the personal representative may begin distributing the estate without fear of legal repercussions. If the estate is already distributed it may be pointless to make a family provision application.

If a family provision application is not made within nine months of the death of the deceased person, the court's special permission will be required to make an Application out of time. You will need a good reason for applying.