Contesting a Will as a Grandchild

A grandchild of the deceased is an Eligible Person pursuant to section 57 of the Succession Act 2006 if the grandchild was also wholly or partly dependent on the deceased at any one time. A grandchild does not extend to step-grandchildren and as such, the grandchild’s parent must be the son or daughter of the deceased.

Establishing dependency is not an easy task for grandchildren, especially if it can be said that the grandchild was dependent on his or her parent, with that parent being ultimately dependent on the deceased person. Dependence in this sense must be immediate and direct and is more easily established if the grandparent assumed more of a parental role, for example in the absence of the parent by reason of premature death.

Because of the category of eligibility a grandchild wholly or partly dependent on the deceased person are also required by section 59 of the Succession Act to establish that there are factors which warrant the making of an order. This means that there must be circumstances which give the grandchild the status of a person who would generally be regarded as a natural object of testamentary recognition of the deceased person. The inclusion of the grandchild’s name in a will (including prior will), being brought up in the same house as the deceased or having a strong personal relationship with the deceased are often circumstances which lead to a finding that there are factors which warrant the making of an order.

Eligibility does not mean that the grandchild will be successful in contesting the will and simply allows the grandchild to commence proceedings, which must be filed within 12 months from the date of death.

If the Court is satisfied there are factors which warrant the making of an order then the Court must determine whether the provision made for the grandchild in the will (or if there was no will in accordance with the rules of intestacy) was inadequate. If the provision is inadequate then the final stage is the determination of what amount, if any, should be paid to the grandchild from the estate of the deceased person (in addition to the amount they are already entitled to under the will). In making this determination the Court will look to a number of matters including:

• any family relationship, including the nature and duration of the relationship.
• the nature and value of the estate.
• the financial resources and needs of all interested parties.
• any physical, intellectual or mental disability of all interested parties.
• the age of the grandchild.
• any contribution made to the estate or welfare of the deceased.
• any provision made for the grandchild the deceased before or after death.
• whether the grandchild was being maintained, either wholly or partly, by the deceased person before the deceased person’s death.
• whether any other person is liable to support the grandchild.

Although ultimately each case turns on its own particular circumstances, grandchildren have a number of very particular hurdles to overcome before a successful content to the will of the deceased. Claims for provision under the Succession Act 2006 must be commenced within 12 months from the date of death so it is important that legal advice be obtained from lawyers experienced in the area as soon as possible.

If you are an executor of a deceased estate, or a grandchild who has been left with inadequate provision from the estate then we are able to meet with you, or speak with you on the phone, for a no obligation assessment of your case, at no cost. Get in touch by contacting your nearest Prime Lawyers office or by making an enquiry online.

We have contested estates lawyers located at Sydney, Parramatta, Chatswood, Sutherland and Wollongong.