Can A Grandchild Contest A Will? (NSW)
A grandchild does not have an automatic right to contest a will in New South Wales. While a grandchild is listed in the Succession Act 2006 as a person who may be eligible to dispute their grandparent’s will, this eligibility is conditional on the grandchild demonstrating a history of dependence on the testator. This article outlines the process of establishing a grandchild’s eligibility to contest a will, with illustration through a case study.
Why Would A Grandchild Contest A Will?
A grandchild should contest a will if they had a moral right to inherit from their grandparent, and received insufficient or no provision in their grandparent’s will. In these circumstances, a grandchild can file a Family Provision Claim in the Supreme Court of NSW in the hope of receiving an appropriate share of the estate. Once the claim is filed, it can be resolved either through a private agreement with the executor of the estate or through a court order following a hearing. A claimant must contest a will within the relevant time limits, which in New South Wales is twelve months from the date of death.
Who Can Contest A Will In NSW?
The spouse, former spouse or de facto partner of the deceased can contest a will in NSW, as can any child of the deceased. Anyone in a close personal relationship with the deceased is also an eligible person to make a claim against the deceased estate. A grandchild and member of the deceased’s household can only contest the estate if they were also financially dependent upon the deceased.
In order for a grandchild to be an eligible claimant, they must demonstrate that their grandparent provided financial support to them. This assistance must have been in the form of regular contributions towards the grandchild’s living expenses. Evidence of occasional gifts or incidental assistance is insufficient to establish dependence.
The 2012 case of Sammut v Kleemann established key principles for a grandchild’s claim. In that case, the court found that:
- A grandparent has no prima facie obligation to make provision for a grandchild;
- If a grandparent assumed an in loco parentis role in the life of the child, then a grandparent should provide for their grandchild from their estate;
- If the grandchild took on a caring role for their grandparent, then the grandparent could have a moral responsibility to provide;
- A grandchild is not dependent on the grandparent if they received occasional voluntary gifts;
- The grandchild must be the party dependent on the testator: it is insufficient if the grandchild’s parent was dependent on the grandparent; and
- The court may consider it significant if the grandchild’s parent has predeceased the grandparent, but in and of itself, this is not a qualifying circumstance.
The NSW Court of Appeal considered the right of a grandchild to contest a will in Chapple v Wilcox (2014). In this case, the testator left his entire estate to his daughter, and his grandsons contested the will. One of the claimants settled out of court while the other proceeded to trial. The court heard that the grandson had resided in the same household as the testator many years before the grandfather’s death. After his parents separated, the grandfather took on some responsibility for the claimant, paying for a private education and engaging him to work for seven years on the rural property. The claimant then followed the testator’s suggestion and took up an apprenticeship as a plant mechanic. The claimant had almost no contact with the testator after that point. The claimant earns a modest income as the owner of a tree loping business but has the qualifications to earn a six-figure salary.
The sole beneficiary of the will, the deceased’s daughter, worked in her father’s pastoral business for most of her life and was a part-owner of the business. The testator’s daughter lived with him and provided personal care for him in his old age.
The Supreme Court found that the claimant had an unhealthy sense of entitlement to his grandfather’s estate, but there was a community expectation that provision would be made for the deceased’s grandchildren. The court set aside the existing provisions of the will and ordered that provision be made for the grandson.
The Court of Appeal found that a grandparent does not have a moral responsibility to make provision for a grandchild. An occasional gesture of generosity, such as making a contribution to the education of a child, is insufficient to indicate dependence. In order for community standards to be a concern, there must be an extraordinary level of support or relationship to prove dependence. For example, if the child’s parents died and the grandparent acted in loco parentis, then it would be assumed that a grandchild might have similar rights as a child of the deceased.
The Court of Appeal found that the facts of the case did not indicate a particularly special relationship between the grandparent and claimant. The testator had never assumed an in loco parentis role in the claimant’s life, and while the grandson lived in the same residence as his grandfather at one point, he actually lived with his parents and sibling in the same residence. While the relationship was close, it was not an extraordinary level of special care or affection.
A grandchild can only contest a will in NSW if they can establish that they were dependent on the deceased. The contested wills team at Armstrong Legal can make an assessment of your case and advise you on your eligibility and the likelihood of success with your claim. Please contact or phone 1300 038 223 to talk to a member of our experienced team.