Can Grandchildren challenge a will

16 October 2023 in Wills and Estates Law

Topic Overview  

In all Australia jurisdictions family provision legislation includes some or all of the following categories of eligible applicants who may apply for provision under the applicable legislation:

1. spouses;

2. former spouses;

3. de facto spouses;

4. children, step-children and grandchildren;

5. dependants; and 

6. parents.

In all jurisdictions grandchildren are generally eligible applicants for family provision. Grandchildren may be eligible in New South Wales as dependants in New South Wales, if wholly or partly dependent upon the deceased at any time.

In New South Wales, a grandchild, a dependant or a person living in a close personal relationship with the deceased must satisfy the court that, having regard to all the circumstances of the case, there are factors warranting the making of the application, which, when added to the facts, elevate the applicant to the status of a person who would generally be regarded as an object of testamentary recognition.

Eligible Person 

Before the New South Wales Supreme Court may exercise its discretion to order further provision in favour of a grandchild, the Court must be satisfied that: 

1. The grandchild is an eligible persons; 

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. 

Generally, a grandchild may be found to be an eligible person under section 57(1)(e) of the Succession Act 2006 (NSW), which states that a person who was, at any particular time, wholly or partly dependent on the Deceased, and who is a grandchild of the Deceased or was a member of the household of which the Deceased person was a member is an eligible person.

Member of the Same Household 

Such cases as Purnell v Tindale [2020] NSWSC 746 and Russell v NSW Trustee and Guardian [2013] NSWSC 370, suggest that a grandchild may have to have been a member of the same household as the deceased for some period. The concept of being a member of a household thus requires a degree of continuity and permanency of mutual living arrangements. 

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 [2020] NSWSC 746, Henry J summarised the key propositions relevant to this question, at [153]-[156]: 

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 at [335]-[342], Hallen J set outs that the factors which, when added to facts which render the applicant an eligible person, give him, or her, the status of a person who would be generally regarded as a natural object of testamentary recognition by the deceased. The language used is extremely broad in its generality, and what must be shown cannot be defined with precision since all the circumstances have to be taken into account.  

Lodin v Lodin [2017] NSWCA 327, 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 (or are) features of that relationship that can be said to create a moral obligation on the deceased to make testamentary provision for the claimant. 

Adequate and Proper Provision 

Consideration must be had to the circumstances in which a moral duty may be placed on the Deceased to make provision for the grandchild. In Chapple v Wilcox (2014) 87 NSWLR 646, Basten JA stated that: 

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 one, or more, of his, or her, 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. 

There may be circumstances in which widely held community standards might expect a grandparent to make some provision for his grandchildren, for example 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. 

Recent Case (Curtis v Curtis [2023] NSWSC 1164)

In Curtis v Curtis [2023] NSWSC 1164 the NSW Supreme Court has ruled on the entitlement of the testator’s grandchildren for a provision, although the testator omitted to mention them in his will.

The deceased executed a will before their 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 for family provision, 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 father of the grandchildren, would have established a testamentary intention to be a beneficiary under the deceased’s will, a status that, in his absence, was assumed by the grandchildren; 

6. the absence of testamentary intention was met and defeated by the statements by the deceased that, rather than the deceased changing his will, Rodney would “do the right thing”; and

7. 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 Brander Smith McKnight help you?

 If someone near to you has passed, and you believe that you are an eligible grandchild or person and you have not been provided with adequate or proper provision, our team at Brander Smith McKnight has experience in navigating the difficult situations involved in making a family provision claim from commencing court proceedings, to mediation and making court appearances. Contact our office on (02) 8539 7475 and we can help you to receive your adequate and proper provision.