Foody v Horewood & Ors

In *Foody v Horewood & Ors*, the High Court of Australia considered a dispute concerning the proper construction of a will. The applicant, Ms. Foody, sought to challenge the distribution of the deceased's estate as provided for in the will, arguing that certain beneficiaries were not entitled to their inheritance. The respondents, the executors and other beneficiaries, contended for the will's validity and the intended distribution.

The central legal issue before the High Court was whether the deceased's will, which contained a gift to "my children and their issue," should be interpreted to include adopted children as "children" for the purposes of the will. This required the Court to consider the interplay between the common law principles of will construction and the relevant provisions of the *Adoption of Children Act 1965* (NSW) (and its predecessors).

Hayne J, delivering the judgment of the Court, reasoned that the Adoption Acts, by providing that an adopted child is for all purposes to be regarded as the child of the adopting parent, effectively altered the legal status of the adopted child. This legal alteration meant that, for the purposes of interpreting a will, an adopted child was to be treated as a natural-born child of the adopting parent. Consequently, the phrase "my children" in the will was to be understood as encompassing adopted children. The Court affirmed that the statutory deeming provision operated to include adopted children within the class of beneficiaries described as "children."

The High Court dismissed the appeal, upholding the decision of the New South Wales Court of Appeal.