Can A Grandchild Contest A Will? (Vic)
In Victoria, the law assumes that a child has a right to the financial support of their parents, but does not assume that a grandchild has a right to the financial support of their grandparents. As a result, a grandchild is not automatically entitled to dispute the provisions of their grandparent’s will. However, there are circumstances when a grandchild can contest a will if they can demonstrate that certain elements of a close relationship existed.
The Administration and Probate Act 1958 establishes an eligibility and dependency test for anyone making a Testator’s Family Maintenance (TFM) Claim against a deceased estate in Victoria. This article explores the two key criteria that a grandchild must satisfy in order to contest a will in Victoria: the testator’s moral responsibility to provide sufficient provision for the claimant, and the grandchild’s dependency on the financial support of the testator.
What Is A Testator’s Family Maintenance (TFM) Claim?
An eligible party can make a TFM claim in Victoria if they are morally entitled to provision from the deceased but received no bequest in the will or received a provision that was insufficient for their financial needs. A claim is lodged with the Probate Office of the Supreme Court of Victoria and assessed against legislative guidelines, common law principles and the claims of other beneficiaries.
Who Is Eligible To Contest A Will In Victoria?
The list of those persons who are eligible claimants against a will in Victoria includes the current spouse (marital, registered, domestic or de facto) and a former spouse who was already engaged in or contemplating proceedings against the deceased in Family Court. A child of the deceased can contest their parent’s estate if they are under the age of 18 (or up to 25 if they are a full-time student). An adult child of the deceased can contest the estate if they can establish that they cannot provide for themselves financially or they are disabled. Finally, a person can contest a will in Victoria if they were in a registered caring relationship with the testator, or can prove ongoing financial dependence on the deceased.
Can A Grandchild Contest A Will In Victoria?
There are several ways that a grandchild can qualify as eligible to contest a will in Victoria. On occasion, a grandparent has to assume custody of their grandchild because of the death of one or both parents, or if the parents are not competent to take care of the child. If the grandparent formally adopted the child according to the Adoption Act 1984, then the child has the same rights to claim against the estate as a biological child.
A grandchild can also contest a will in Victoria if they can prove that they were financially dependent on the testator at some point in their relationship. For instance, if the grandchild lived with their grandparent for any length of time and the testator provided for the claimant’s living expenses, then a grandchild could argue dependence on the testator. The court will consider the claimant’s case in totality to assess whether there are elements of dependence. There is no statutory minimum on the length of the dependence, but the longer the period of dependency, the more substantial the claim.
Case Study: Dependence
In the 2016 case Missen v Missen, the application of a grandchild for further provision in a will was rejected as the court ruled that the testator had no moral responsibility to provide for the claimant’s maintenance and support. The claimant argued that the deceased estate was substantial and that he had no means of support because his mother was terminally ill and his father died when he was five. He defended the lack of contact between the testator and himself as not his fault as he was still a child when the testator passed away.
Despite these arguments, the court found that the claimant was never actually dependent upon the deceased at any point in his life. The judge ruled against the claimant, finding that it would “offend community standards” if the claimant received provision from the deceased estate, particularly as the claimant had already received a substantial bequest from his father’s estate.
Even if the grandchild can establish their right to contest a will, there is no guarantee that they will be awarded provision from the estate. The court will assess the grandchild’s claim against a range of factors, including:
- What would be an appropriate level of provision;
- The deceased’s reasoning behind the will provisions;
- Evidence of the relationship between the deceased and the claimant;
- The deceased’s obligations to the claimant;
- The applicant’s character;
- The financial circumstances and needs of the applicant;
- Any physical or mental impairment that would affect the applicant’s circumstances;
- The value of the deceased estate;
- The validity of any other claim against the estate.
Time Limits To Contest A Will
An eligible grandchild can only contest a will in Victoria during strict time frames. A TFM claim must be lodged sometime in the six months after the probate grant unless the court agrees that there were extraordinary reasons for the delayed application. The court will make a decision on an out of time claim based on the length of time that has passed and the justification for the delay. There is no legislative provision for a late application if the estate has already been distributed to the beneficiaries.
For legal guidance on your right as a grandchild to contest a will, please contact or call our contested wills team on 1300 038 223. The experienced solicitors at Armstrong Legal can advise you on any aspect of probate or succession law, and assist you with drafting a claim against a deceased estate.