Can Grandchildren of The Deceased Contest a Will in NSW?

In NSW, only an ‘eligible person’ can contest a will.

The grandchild of a deceased person may be considered an ‘eligible person’ if they satisfy a court of the following:

1. They were, at any particular time, wholly or partly dependent on the deceased person; and
2. There are ‘factors which warrant the making of the application’.

Claims by grandchildren are common and many are successful, but each case must be assessed on its merits.

Why would a grandchild contest a will? 

A grandchild who was financially or emotionally dependent on their grandparent might consider contesting a grandparent’s will if it did not adequately provide for them on the grandparent’s death.

This is referred to as a family provision claim.

In a family provision claim, the burden of proof rests with the claimant to demonstrate that the deceased’s will did not make adequate provision for the claimant’s proper maintenance, education, or advancement in life.

In NSW, family provision claims are subject to a strict time limit and grandchildren seeking to contest a grandparent’s will must file their application in court within 12 months from the date of the deceased’s death.

Establishing dependence 

A grandchild bringing a claim against the deceased estate must satisfy the court that they were, at any particular time, ‘wholly or partly dependent’ on the testator.

Dependency may involve financial and/or emotional dependency.

Dependency does not require dependency at the date of death and can include a prior or historic dependency.

Dependency does not include the receipt of an occasional gift or incidental assistance during the deceased’s lifetime, however, the facts and circumstances of each case must be considered when determining the nature and extent of any dependence.

In addition to satisfying a court of a dependency, a grandchild must also prove there are ‘factors which warrant the making of the application’. This provision requires the eligible person to be someone who would be a natural object of the deceased’s testamentary recognition: Re Fulop (1987) 8 NSWLR 679.

What constitutes ‘factors which warrant the making of the application’ can be complex and an experienced will dispute lawyer is best placed to make an assessment on these factors.

What a Court Will Take Into Consideration 

When assessing a family provision claim, the Court may consider the 16 factors set out in section 60(2) of the Succession Act 2006 (NSW).

Some of those factors are set out below.

The nature of the relationship between the grandparent and grandchild

The nature of the relationship between the grandparent and grandchild may be relevant to a claim.

Generally, the closer and more loving the relationship, the stronger the claim.

Claims often arise in families where a grandparent has assumed the role of the parent (referred to as loco parentis), caring for and raising the grandchild in place of the absent or deceased parent.

On the other end of the scale are estrangements, which are increasingly common. When determining the relevance of an estrangement, the court will often consider the duration, origin, and contributors of the estrangement. A grandchild who made a genuine attempt to reconcile with their grandparent before the grandparent’s death may go some way in curing the negative impact estrangement may have on a family provision claim.

The nature and extent of any obligation owed by the grandparent to the grandchild

The Court may have regard to the nature and extent of any obligations or responsibilities owed by the grandparent to the grandchild. Obligations might include ongoing (not incidental) funding of the grandchild’s education, housing, or healthcare costs.

The nature and size of the grandparent’s estate

The size and nature of the grandparent’s estate may be relevant to a claim.

Generally, the larger the estate the more there is to be shared among the beneficiaries.

The financial resources and financial needs of the grandchild and other beneficiaries

The grandchild’s financial resources and financial needs may be relevant to a claim.

A grandchild who has limited financial resources and who has financial need may have a stronger claim than an adult grandchild who is independently wealthy.

As with all claimants, a grandchild is expected to provide full financial disclosure to the court and the other side and a failure to do so may detriment a claim.

H3: The financial circumstances of anyone with whom the grandchild is cohabiting

The court may also take into account the financial circumstances of any person with whom the grandchild is cohabiting. For instance, a granddaughter who makes a claim on her grandparent’s estate who still lives with both her parents, will be expected to provide full financial disclosure of her financial resources in addition to that of her parents.

Any physical, intellectual, or mental disability of the grandchild

Any physical, intellectual, or mental disability of the grandchild may be relevant to a claim.

The grandchild’s age

The grandchild’s age may be relevant to a claim.

A young grandchild who is still living with and remains dependent on both parents for the necessities of life and education may have a weaker claim than an adult grandchild who is financially independent and who has fallen on hard times.

Any contribution the grandchild made to the acquisition, conservation, and improvement of the grandparent’s estate

Any contributions the grandchild made to the acquisition, conservation, and improvement of the grandparent’s estate may be relevant to a claim.

Common examples are farming families where the grandchildren have spent years or decades working on the family for no or minimal financial reward.

Contributions to the deceased’s welfare in the form of personal care and support may also be relevant to a claim.

Any provision made by the grandparent to the grandchild during their lifetime

Any provision made by the deceased grandparent to the grandchild during their lifetime may be relevant to a claim.

For example, a grandchild who has received large regular gifts from the grandparent during their lifetime may have a weaker claim than a sibling who received nothing from the grandparent during their lifetime.

The grandparent’s testamentary intentions

Sometimes when a grandparent disinherits (either wholly or partly) a grandchild, they prepare a document (i.e., statutory declaration, letter) setting out the reasons for doing so.

Where a deceased has left a document setting out their reasons it may be relevant to a claim.

The character and conduct of the grandchild

The character and conduct of the grandchild may be relevant to a claim.

A grandchild who subjected the grandparent to verbal, physical or psychological abuse during their lifetime may have this factor weight against them on a claim.

Some grandparents may be emotionally or financially abused by their grandchildren, particularly in their older years (for will disputes involving undue influence, read our Guide to Challenging a Will in NSW).

Case Studies 

Ballam & Ors v Ferro & Anor [2022] NSWSC 1200

This case involved a claim by 3 grandchildren on their grandfather’s estate estimated at between $4.1m and $6.3m.

Each of the three plaintiffs brought a claim on the basis that they were partly dependent on the deceased on the basis that they had lived rent free for a short period of time in one of the deceased’s properties. None of the plaintiffs had ever lived, or even stayed with the deceased, and unlike many other cases in which a grandchild is found to be wholly or partly dependent, there were no periods of time in which she, or he, lived, or stayed, with the deceased. Nor was there any suggestion of any financial support, or other than minimal occasional gifts of small amounts of money, provided to any of the plaintiffs by the deceased at any other time.

The court was not satisfied that any of the plaintiffs were wholly or partly dependent on the deceased and dismissed each claim.

Chisak v Presot [2022] NSWCA 100

This matter involved a claim by a grandchild, who was entitled to 20% of the estate under the terms of the will.

The grandchild sought 50-60% of the estate by reason of her mental illness, poor financial position, and significant need for accommodation.

The grandchild was a minor and living with her father, who claimed she was partly dependent on her grandmother on the basis that she had stayed with her for two or three relatively short periods of time many years before the grandmother’s death.

At first instance, the Supreme Court held that the claimant had not established that she had been at any particular time partly dependant on the deceased and even if she had proven that she had been partly dependent on the deceased that court found that she had failed to satisfy the court that the provision made (20% of the estate) was not adequate for her proper maintenance, education or advancement in life.

The plaintiff appealed the decision to the Court of Appeal which found the plaintiff had in fact established partial dependency on the basis of the prior stays but in any event, confirmed the lower court’s decision that the provision made (20% of the estate) was not inadequate for her proper maintenance, education or advancement in life.

The grandchild’s claim was dismissed with costs.

Get Legal Advice From Empower Wills and Estate Lawyers Today

It can be a difficult decision to choose to contest a grandparent’s will.

If you need assistance in establishing whether or not you are eligible to contest a deceased grandparent’s will, contact us now on [email protected] or 1300 414 844 for a confidential and obligation-free initial consultation.

Want to learn more?

Read more about who can contest a will here.

Read more about the costs of contesting a will in NSW here.

Disclaimer: the information in this article relates to NSW law and is general information only. It does not constitute legal advice and should not be relied upon. If you have a question or legal issue we recommend you contact a lawyer and obtain legal advice that takes into account your specific facts and circumstances.