Can I Make a Claim on My Grandparent's Estate?

If you believe that you have been left with inadequate financial provision from your grandparent's estate, it may be possible to contest the Will. The Succession Act 2006 (NSW) recognises that a grandchild may be an "eligible person" to make a family provision claim.

To be successful, you would have to have been wholly or partially dependent on your deceased grandparent at some stage of their life. It will also be necessary to satisfy the Court that there are factors that warrant the making of the application. As with all family provision claimants, you would also have to satisfy the Court that adequate provision for your "proper maintenance education or advancement of life" has not been made from the deceased's estate.

The meaning of "wholly or partially dependent"

Grandchildren are considered to be eligible to make a claim for family provision against a grandparent's estate so long as they can demonstrate that they were wholly or partly dependent, at a particular stage, on their deceased grandparent.   

Establishing dependency is critical but not always straightforward. It is undefined in the Act. In the case of Austin v NSW Trustee & Guardian (2016), which featured an unsuccessful claim by a grandchild, the Supreme Court stated that

... the question of dependency, whether whole or partial, is a complex question of fact...it is not determined upon theoretical considerations. It is "the actual fact of dependence or reliance on the earnings of another for support that is the test".

As a grandchild, you will need to show that your deceased grandparent, in effect, assumed responsibility for your welfare at some stage, or had a continuing responsibility to support you financially or emotionally and directly supported you with regular financial assistance. Gifts of money or other incidental monetary assistance would not be considered sufficient.

Factors warranting the making of a family provision application

A grandchild will also be expected to establish that there are factors that warrant making an order for provision. In effect, this means there must be circumstances that will give the status of someone who could be regarded as being an object of "testamentary recognition". These factors might include having been brought up in the grandparent's home, having a strong personal relationship with the grandparent, or having been named in an earlier Will.

If the Court is sufficiently satisfied with these factors, it will consider whether the provision, if any, made in the Will was adequate. If the provision is considered inadequate, then the amount that should be paid from the deceased's estate will need to be determined. In making its determination, the Court will consider several things, including:

• the nature and value of the estate;
• the financial resources and needs of all interested parties;
• the age of the grandchild;
• contributions made towards the estate or welfare of the deceased;
• the nature and duration of the relationship;
• any previous provision made;
• and whether any other person is liable to provide support.

Case example

In Misek v McBride (2017), the granddaughter of a deceased woman successfully pursued a family provision claim. The claimant had lived with her grandparents during her teenage years after her parents had been unable to cope. At 19, she married, but she remained close to her grandparents until their death.

The claimant's grandfather, Mr Stuart, died in 2011 and her grandmother, Mrs Stuart, died in 2014. Mrs Stuart left all of her estate to her only daughter Cheryl. Her only son Gregory had predeceased his parents and the family provision claimant, Kylie, was one of Gregory's children. Cheryl was the estate's executor and defendant. She did not contest Kylie's "eligibility" as a partially dependent grandchild of Mrs Stuart. In the Will, the claimant and the deceased's other grandchildren were not named as beneficiaries. The reason given for this was that they had already received substantial financial support over the years.

As part of her claim, Kylie alleged that part of Mrs Stuart's estate was held on a "secret trust" for her benefit. This was based on "family meetings" between late 1999 and May 2000 that purportedly acknowledged Cheryl would hold 20% of the surviving grandparent's estate for her. Kylie alleged that Cheryl had accepted these obligations at those meetings, but this was denied.

What did the Court decide?

The Court did not accept that a series of conversations had taken place. However, the claimant's financial position was considered precarious with a large outstanding mortgage, significant other debts, and extensive repairs required to the family home. Income was relatively meagre and did not meet their regular outgoings. In contrast, the defendant was married and had significant assets, income and superannuation.

The Court awarded the applicant $460000 to pay off most of the mortgage, reducing outgoings for her and her husband and freeing up income for other purposes.

How likely is it that a claim will be successful?

Generally speaking, a grandparent does not have any obligation or responsibility to make provision for grandchildren in their Will, as this rests on the grandchild's parents. However, a grandchild can be eligible to claim provision from the estate of their grandparent if they can establish a degree of dependency on the grandparent, or alternatively, show they had a close personal relationship at the time of the grandparent's death.

Does eligibility guarantee success?

Eligibility does not guarantee success in contesting a Will, but it allows proceedings to commence. Each case will turn on its own circumstances. With the complexities involved and a time limit (proceedings should commence within 12 months of the date of death) it is important to obtain legal advice from lawyers experienced in contesting estates as soon as possible.

For more information, see our guide on 'How to Contest a Will in NSW'.

Contact our Contesting a Will Solicitors, Sydney, NSW

If you were dependent on your grandparents at any point during their lifetime, you might be entitled to receive a portion of their estate. If you feel you have been left with inadequate provision from an estate, contact Szabo & Associates Solicitors who can assess and advise on your position. Please call us on 02 9281 5088 or fill in our online contact form.