When Can Grandchildren Claim Inheritance from an Estate?

If a grandchild is entitled to a benefit under the will, the grandchild can claim that benefit from the executor, and the executor will be obliged to hand over the benefit, unless there are conditions attached that have not been met. 

In some cases, regardless of whether the grandchild has received a benefit under a will, they may still be able to bring a claim against the estate of their deceased grandparent, known as a family provision claim. 

In NSW, for a family provision claim by a grandchild to succeed, they will need to prove:

1. They are an “eligible person” by virtue of either of the following:
   1. They were  wholly or partly dependent on the deceased at any time; or
   2. They were living with the deceased in a close personal relationship at the time of the deceased person’s death; and
2. They did not receive adequate provision from the estate for their proper maintenance, education or advancement in life; and 
3. There are factors that warrant the making of the application, i.e., circumstances that make the grandchild someone whom the deceased had an obligation to provide adequate provisions. 

Claims are most commonly reported by grandchildren who claim they were dependent grandchildren. 

Grandchildren’s estate rights can be complex, and we recommend that any person considering a claim seek legal advice on the relevant inheritance laws and grandchildren’s estate rights. 

If They Are Named as a Beneficiary in the Will

If a grandchild is named beneficiary under a will, and all conditions have been satisfied (i.e. have attained any minimum age), the grandchild is legally entitled to the named inheritance, and the executor will be obliged to disburse or transmit the benefit to the grandchild prior to finalisation of the estate administration. 

If Their Parent Was a Beneficiary but Passed Away

In NSW, where a person dies leaving property to their children, and one or more of those children has already died or does not survive 30 days but leaves surviving children (grandchildren of the original testator), then those grandchildren will take the deceased parent’s inheritance under a substitute beneficiary rule, unless a contrary intention appears in the will.

However, laws vary from state to stat, and a person should seek advice on deceased parent inheritance.

If There Is No Will (Intestacy Laws in NSW)

In NSW, where a person dies without a will, their estate will be distributed in accordance with the order set out in the “intestacy provisions” located in Chapter 4 of the Succession 2006 (NSW).

Generally speaking, an intestate will flow in the following order:

• Spouse or de facto
• Children – but if any child has predeceased, then to the child’s children (i.e. grandchildren)
• Parents
• Siblings – but if any sibling has predeceased, then to the sibling’s children (i.e. nieces and nephews)
• Grandparents
• Uncles and aunts – but if any uncle or aunt has predeceased, then to the uncle’s or aunt’s children (i.e. cousins)
• Finally, the State. 

Therefore, where a grandparent dies without a will and one or more of their children have already died, the children of the predeceased child will inherit their parent’s share.

Blended families have different orders of entitlements under intestacy laws NSW. 

If They Make a Family Provision Claim

A grandchild who believes they have not received adequate provision may consider bringing a claim under section 59 of the Succession Act 2006 (NSW), known as a family provision claim. 

In NSW, a family provision claim typically begins with negotiations with the opposing party. However, if negotiations fail, the grandchild may need to commence proceedings in the Supreme Court of NSW to secure a favourable outcome. 

What Happens If There Is No Will?

Where a person dies without a will they are referred to as dying “intestate”. 

In NSW, an intestate estate will be distributed in accordance with Chapter 4 of the Succession Act 2006 (NSW) in the following order:

• Spouse or de facto
• Children – but if any child has predeceased, then to the child’s children (i.e. grandchildren)
• Parents
• Siblings – but if any sibling has predeceased, then to the sibling’s children (i.e. nieces and nephews)
• Grandparents
• Uncles and aunts – but if any uncle or aunt has predeceased, then to the uncle’s or aunt’s children (i.e. cousins)
• Finally, the State. 

Blended families have different orders of entitlements.

Therefore, where a grandparent dies without a will and one or more of their children has also died, the children of the predeceased child will inherit their parent’s share.

Can Grandchildren Contest a Will for Inheritance in NSW?

Yes, a grandchild may contest a will. 

However, in order to succeed, the grandchild must establish the following: 

1. They are an “eligible person” by virtue of either of the following:
   1. They were  wholly or partly dependent on the deceased at any time; or
   2. They were living with the deceased in a close personal relationship at the time of the deceased person’s death; and
2. They did not receive adequate provision from the estate for their proper maintenance, education or advancement in life; and 
3. There are factors warranting the making of the application – i.e. circumstances which make the grandchild someone whom the deceased had an obligation to provide adequate provision. 

Contesting a will as a grandchild can be challenging; however, many claims can be resolved through negotiations without the need to commence formal Court proceedings. It is only if a claim cannot be resolved through negotiations that a grandchild may need to file a family provision application with the Supreme Court to seek a favourable outcome. 

Grandchildren who are considering a claim should contact an experienced wills and estate lawyer and seek advice on their prospects of success before taking any steps.

Need Legal Advice on Inheritance Rights? Contact Us Today!

If your grandparent has died and you would like to know if you have a claim, call Empower Wills and Estate Lawyers today on 1300 414 844 or send us a website enquiry. 

Empower Wills and Estate Lawyers are leading wills and estate lawyers in Sydney with experience in claims by grandchildren. We offer free initial phone consultations so you will not have to pay to discuss your claim. If you are wondering whether grandchildren can inherit in NSW, please call us today to discuss their inheritance rights. 

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Disclaimer: the information in this article relates to NSW law as at the date it was written and is general information only. It does not constitute legal advice and should not be relied upon as legal advice. It may contain information or links to sources which are no longer current. 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, circumstances, needs and objectives.