Can A Grandchild Contest A Will in Australia?
A grandchild can contest the will of their grandparent in almost every jurisdiction of Australia. However, most states and territories that designate a grandchild as an eligible claimant also require that the grandchild was dependent on the testator for some form of maintenance. This article lists the different legislative provisions in each jurisdiction for a grandchild to contest a will.
What Does It Mean To Contest A Will?
Australian law defends a person’s testamentary freedom to leave their property to whomsoever they wish in their will. In order to ensure fairness, each jurisdiction has legislative provision for eligible persons to contest the provisions of a will. If a testator had a moral obligation to provide financial support for someone and has failed to meet their obligations in their will, then a claimant can file an application with the appropriate Supreme Court. A claim is judged against competing claims, statutory guidelines and common law principles. The court may order a redistribution of the estate to better meet the needs of the claimant and the existing beneficiaries.
Listed below are the legislative provisions for a grandchild to contest a will in jurisdictions across Australia:
In South Australia, the “child of the child of the deceased” has an unequivocal right under the Inheritance (Family Provision) Act 1972 to contest their grandparent’s will.
In Victoria, a grandchild (including a step-grandchild or adopted grandchild) has a conditional right under the Administration and Probate Act 1958 to contest a will. A grandchild is only eligible if they were dependent on the testator’s financial support at some point in their lives. A claimant needs to provide evidence to the court of this dependence, and common law precedent suggests that the longer and greater the degree of dependence, the better the grandchild’s claim on the deceased estate.
In Queensland, a grandchild is not named as an eligible person in the Succession Act 1981, but they can still contest a will if they are under the age of eighteen and received financial support from the testator before they died. For instance, if the testator provided free accommodation for their grandchild, the court is likely to agree that the grandchild was financially dependent on the testator.
New South Wales
A grandchild can contest a will in New South Wales according to the Succession Act 2006 if they lived in the testator’s household at one point and was financially dependent on the testator to some extent, although these two things do not need to be concurrent. For instance, a grandchild might reside in the household of the deceased for a time as a child and then need the financial support of their grandparent years later. Claimants need to be aware that if they shared a home with their parents and the testator, the court may decide that the grandchild was actually a dependent of the parent and not the grandparent.
Australian Capital Territory
In the Australian Capital Territory, the Family Provision Act 1969 allows a grandchild to contest the will of their grandparent under certain conditions. A grandchild can make a claim if their parent (who is also the child of the deceased) died before the testator, or if before the testator’s death one or both of the grandchild’s parents were not providing for their child. Essentially, if a grandchild can prove that the grandparent was acting in loco parentis then they have a strong claim on the deceased estate. A grandchild can support this claim through evidence of their cohabitation with the grandparent, and of the grandparent’s assumption of direct responsibility for their welfare or finances.
In Western Australia, eligibility to claim against a deceased estate is codified in the Family Provision Act 1972. A grandchild, either already born or born in the ten months following the testator’s death, has a right to contest a will if their parent (who is the child of the deceased) predeceases the testator. In the event that the testator was partly or wholly maintaining the grandchild just before their death then the grandchild can contest a will.
In the Northern Territory, there is allowance in the Family Provision Act 1970 for a grandchild to file a claim against a deceased estate, but only if the testator was maintaining the grandchild before their death. If a claimant was entitled to or already receiving court-ordered maintenance or was receiving informal but meaningful financial support, then they are eligible to contest their grandparent’s will.
There is no provision under the Testator’s Family Maintenance Act 1912 for a grandchild to contest a will in Tasmania.
A grandchild can contest a will in almost every jurisdiction in Australia, but only if they can substantiate both eligibility and financial need for provision. If you need help to understand the legal regulations in your jurisdiction, please get in touch with our offices on 1300 038 223. Our contested wills team can provide advice on all aspects of estate and probate law, and help you file a claim against the deceased estate.