Can Grandchildren challenge a will?

30 November 2024 in Wills and Estates Law | 8 min read | skip to FAQs

This article examines family provision legislation to answer the question, can grandchildren challenge a will?  We discuss the complexity of this question with reference to several relevant legal cases. In simple terms, grandchildren have the automatic right to make a claim, under s57 of the Succession Act 2006 (NSW), being an eligible applicant. However, whether they are successful in this claim is less straight forward. For more general information about contesting wills, see our article contesting a will in NSW.

Categories of Eligible Applicants able to apply for a Family Provision Claim

A family provision claim or order is a way of claiming that someone has not been sufficiently provided for in a will. In colloquial terms, it is a means of challenging a will. The following categories are known as eligible persons and can apply for a family provision claim, pursuant to  s57 of the Succession Act 2006 (NSW).

Eligible Persons who can challenge a will

1. spouses
2. former spouses
3. a de-facto spouse who was living with the deceased person at the time of their death
4. children, including biological or adopted by both parties
5. a person who was, at any particular time, wholly or partly dependent on the deceased and is a grandchild or a member of the same household as the deceased such as step-children
6. a person who was living in a close, personal relationship at the time of death

Can Grandchildren Challenge a Will?

Put simply, in some cases grandchildren may be able to challenge a will. In NSW, a grandchild, a former spouse, dependant or a person living in a close personal relationship with the deceased must satisfy the court of additional factors set out in sections 59(1)(b) and (c) of the Succession Act 2006 (NSW) to become eligible to make a family provision claim. In simple terms, a grandchild can be regarded as an eligible person and therefore able to make a family provision claim if they were wholly or partly dependent upon the deceased at any time.

Supreme Court’s role in Grandchildren’s rights to Challenge a Will

The NSW Supreme Court may exercise its discretion to grant a grandchild a family provision claim, when the Court is satisfied that: 

1. The grandchild is an eligible person
2. There are factors which warrant the making of the application; and
3. Adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made, has not been made by the will of the deceased person or the Succession Act 2006 (NSW). 

Other Issues considered by the Court when Grandchildren Challenge a Will

The following court cases highlight the legal complexity of whether grandchildren have the right to apply for a family provision order or in colloquial terms, contest a grandparent’s will. The different categories refer to the legal issue that was examined.

Being a Member of the Same Household 

Cases such as Purnell v Tindale 2020 (NSWSC) 746 and Russell v NSW Trustee and Guardian 2013 (NSWSC) 370, suggest that a grandchild should have been a member of the same household as the deceased for some period. The concept of being a member of a household implies a degree of continuity and permanency of mutual living arrangements. 

Being a Dependent Person 

Payne JA has posed the relevant question as to the meaning of dependent, as: “has reliance on another to fulfil a need been shown?”.

In Purnell v Tindale , Henry J summarised the key propositions relevant to this question: 

1. The question of whether a person is wholly or partially dependent on another is a question of fact. 
2. In its ordinary sense, dependency means the condition of depending on something or someone for what is needed. The whole relationship must be considered to determine whether there is dependency, considering past events and future possibilities. 
3. Dependency is not limited to purely financial or material matters, although it does involve one person being beholden to another for some material or physical help or succour, emotional dependency is not enough. 
4. Reliance on someone for accommodation may amount to dependence.

Factors Which Warrant Making the Application 

In Chisak v Presot 2021 (NSWSC) 597, Hallen J set outs that the factors which the Court may consider in making a decision to grant a family provision order to a grandchild. The language used is extremely broad, and what must be shown cannot be defined with precision since all the circumstances have to be taken into account.  

Lodin v Lodin 2017, is a case that considered a former spouse. It also stipulates that the nature of the relationship between the claimant and the deceased is a significant matter. In particular, it may be very important to determine whether there were features of that relationship that can be said to create a moral obligation on the deceased to make testamentary provision for the claimant, in other words to provide for them in their will.

The Concept of Adequate and Proper Provision 

In Chapple v Wilcox 2014 87 (NSWLR) 646, Basten JA stated that there are circumstances in which there is a moral duty placed on the deceased to make provision for the grandchild. 

1. As a general rule, a grandparent does not have a responsibility to make provision for a grandchild; that obligation rests on the parent of the grandchild.
2. The fact that the grandchild resided with their grandparents is a significant factor. Even then, it should be demonstrated that the deceased had come to assume, for some significant time in the grandchild’s life, a position more akin to that of a parent than a grandparent, with direct responsibility for the grandchild’s support and welfare.
3. The mere fact of a family relationship between a grandparent and grandchild does not of itself, establish any obligation to provide for the grandchild.
4. Generosity by the grandparent to the grandchild, including contribution to the education of the child, does not convert the grandparental relationship into one of obligation to provide for the grandchild. 
5. The fact that the deceased occasionally, or even frequently, made gifts to, or for, the benefit of the grandchild does not, in itself, make the grandchild wholly, or partially, depend on the deceased. 
6. It is relevant to consider what inheritance, or financial support, a grandchild might fairly expect from his, or her, parents. 

Thus, there may be circumstances in which widely held community standards might expect a grandparent to make some provision for his/her grandchildren. For instance, where they had maintained a strong relationship and where there was reason to doubt the willingness or the ability of the parents to make adequate provision for their children. If this is the case, the outcome is likely to be successful if the grandchildren challenge a will.

The Important Recent Case of Curtis v Curtis 

In this recent case the NSW Supreme Court ruled on the entitlement of the testator’s grandchildren for a provision, although he omitted to mention them in his will. Curtis v Curtis 2023 (NSWSC) 1164

The deceased executed a will before his death in 2022 but did not make any provision for his grandchildren. The sole beneficiary under the will was the deceased’s son and uncle to the grandchildren.

The grandchildren filed a family provision application, and the sole beneficiary held the position that the grandchildren had not been “wholly or partly dependent upon the deceased or were otherwise entitled to relief.” Among many points of discussion, the court acknowledged the following:

1. the existence of dependency had been the subject of much judicial comment but emphasised that every case should be decided on its facts;
2. the weekends spent with the deceased are an important dependency element. The court said this was not a recreational weekend spent with a grandfather. The deceased stepped in to care for the plaintiffs while their father was working;
3. one of the grandchildren’s descriptions of his relationship with his grandfather had all the attributes of children being in the care of and dependent upon their grandfather for short periods of time;
4. the deceased filled a gap in the grandchildren’s upbringings, which their father did not provide; 
5. the absence of testamentary intention was met and defeated by the statements of the deceased that, rather than the deceased changing his will, the beneficiaries would “do the right thing”; and
6. the son and sole beneficiary intended to defeat the claims of his nephews and deceased brother to secure the maximum benefit from the estate for himself. 

The court ruled that the grandchildren were dependent upon the deceased to the extent that the court awarding them 20 per cent each of the net proceeds of the deceased’s house sale.

How can BSM Sydney Lawyers assist you?

If your grandparent has died and you believe that you have not been provided with adequate or proper provision in the will, our wills and estates team at Brander Smith McKnight Lawyer Sydney can provide assistance. We can examine your individual situation and assess whether you are likely to have success in making a family provision claim. We have experience in navigating the difficult situations involved in making a family provision claim from commencing court proceedings, to mediation and making court appearances. Our experienced contested estates lawyers will ensure that you receive what you were entitled to from your grandparent’s will. The estate lawyers at BSM Lawyer Sydney provide a free, 20-minute, no obligation consultation to discuss and assess your individual situation.

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