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This article was written by Dr Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first class honours from the University of Tasmania, a Bachelor of Laws with first class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade working in higher education, Nicola joined Armstrong Legal in 2020.

Can A Grandchild Contest A Will? (ACT)


When someone passes away, their spouse and children have the strongest claim against the deceased estate. However, in some families, a grandchild may be very close to, and dependent upon, his or her grandparent. In recognition of this, in the ACT, a grandchild has a conditional right to contest their grandparent’s will. Under the Family Provision Act 1969, a grandchild has several paths to establish standing to contest a will, depending on whether their own parents are still alive and maintaining them. This article explains how a grandchild can contest a will in the ACT.

Jurisdiction

If the deceased grandparent owned real property in the ACT or was a permanent resident in the territory, then the grandchild can make a Family Provision Claim to the Supreme Court of the ACT.

Does the grandchild have standing to contest the will?

A grandchild has an unconditional right to contest a will if their grandparent legally adopted them because their own parents were unable or unwilling to care for them. In that event, a grandchild has identical rights to a biological child of the deceased. A grandchild who is not formally adopted can only contest their grandparent’s will in the ACT under two specific conditions.

The first instance is when a child of the testator has died leaving behind children. In that case, these children are eligible to make a claim against their grandparent’s estate. In a sense, the children “inherit” the eligibility that their parent would have had to contest the will.

The second way for a grandchild to establish eligibility is if the court is satisfied that the testator acted in loco parentis for their grandchild. Ultimately, a grandchild is eligible if the grandparent ever voluntarily accepted responsibility for the financial and/or emotional welfare of the grandchild.

A factor that will weigh heavily in deciding whether the grandparent was acting in the role of a parent will be whether the grandchild was financially dependent upon the grandparent. A major factor in determining dependence is whether the grandchild resided with their grandparent in the past, and if so, for how long. For older grandchildren, it is particularly significant if the grandparent took responsibility for supplying the necessities of life for their adult grandchildren, for instance, ensuring that they had safe accommodation, necessary living expenses and medical care.

What Does It Mean For a grandchild To Contest A Will?

In the ACT, a grandchild can file a Family Provision Claim if they meet the eligibility requirements outlined above, and did not receive an adequate share of the deceased estate for their financial needs.

A claim can be resolved before trial through mediation or private negotiation with the executor of the estate, or if that is not possible, the grandchild can escalate the claim to a court hearing. However, it is far preferable for the grandchild to reach an agreement with the executor, as it will be considerably more expensive and time-consuming to proceed to a hearing.

An eligible grandchild can only contest a will in the six months following the Grant of Probate, unless they receive express permission from the court for a late application. The court will only grant an exception for a late application if the claimant can show sufficient justification for the delay. It is imperative that the grandchild make a claim within the time limit, as a court will be less likely to allow the late application from a grandchild (who has only a conditional right to make a claim) than from, for instance, a spouse or child of the deceased.

How Will The Court Assess A Grandchild’s Claim?

The court will approach each case based on statutory law and common law.  When the court is assessing a grandchild’s claim to their grandparent’s estate, they will typically consider the following factors:

The grandchild’s age

The court may find that a minor will need more financial support than an adult able to support themselves.

The grandchild’s financial position

This includes their immediate and future needs, and financial resources. A claimant with a well-paid job, for instance, is less likely to need support from their grandparent’s estate.

Disability

Whether the grandchild has a physical, mental or intellectual disability. The court is more likely to find that a disabled claimant who struggles to support themselves is in need of support from their grandparent’s estate.

The relationship

The length and nature of the relationship between testator and claimant.

Financial contributions

Whether the grandparent financially contributed to the claimant.

Whether the grandchild contributed to the deceased’s estate or provided care or support to their grandparent prior to their death;

Size of the estate

The size of the estate and whether provision can easily be redistributed to the grandchild without affecting another beneficiary.

Other claims

The relative strength of other claims against the estate.

The contested wills team at Armstrong Legal is ready to discuss your eligibility to contest your grandparent’s will. If you are considering making a claim, or have questions about succession law, call us for an initial case assessment. Please call our team on 1300 038 223 or arrange a meeting to talk over your legal concerns.

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