What are the inheritance rights of grandchildren in New South Wales?

The inheritance rights of a grandchild, in terms of contesting a Will by making a family provision claim, varies from state to state in Australia. As far as NSW is concerned, grandchildren may be eligible to claim some or additional provision from their grandparent’s estate if they can demonstrate sufficient dependency on the deceased grandparent at some stage during their life or had a close personal relationship.

The Legal Framework

Some, but not all, grandchildren of a deceased grandparent are eligible to apply for a family provision order in respect of the estate, or notional estate, of the deceased. The standing of a grandchild to apply is governed by s57 of the Succession Act 2006 (NSW), which defines those persons who are eligible to make a family provision claim. These persons include a grandchild who was wholly or partly dependent on the deceased or someone, which may include a grandchild, with whom the deceased person was living in a close personal relationship at the time of their death.

In addition, Section 59 considers whether the family provision claim is ‘for the proper maintenance, education or advancement in life of the claimant while s60 considers matters such as the deceased’s obligations and financial circumstances, the claimant’s financial position and the value of the estate.

These issues have been examined in a number of cases, one of the most recent of which is considered in the featured case below.

Case Study: Chisak v Presot (2021)

Ivy Chisak was born in 1995 and was an only child. Her mother, also an only child, committed suicide in 1996. Ivy then lived with her father visiting her grandmother between 2000 and 2003 but not subsequently because of the breakdown of the relationship between her father and grandmother. The grandmother continued to send small gifts and money orders of around $300 three or four times a year.

The grandmother died in 2017, aged 87, leaving an estate close to $1 million. She had made a Will in 2009 in which Ivy was the main beneficiary other than for some small gifts ($5000 to $7500) to four friends. However, about five months before her death, she made a new Will leaving her estate to Ivy and the four friends equally.

Ivy challenged this new Will as invalid due to her grandmother’s incapacity at the time. Notwithstanding this being rejected by the Court she also argued she was entitled to a family provision order granting her all of her grandmother’s estate.

The defendants in turn questioned Ivy’s eligibility as she was never dependent on her grandmother. Even if she was eligible, the provision made in the 2017 Will was ‘adequate and proper in the circumstances of the case’.

The NSW Supreme Court decided that the granddaughter was never wholly or partly dependent on her grandmother and her claim was unsuccessful.  There was no real sense of dependence, rather what might be termed mere brief periods of visitation.

In coming to its decision the Court reiterated a number of principles applicable to family provision claims by a grandchild. These include:

1) Generally speaking a grandparent does not have a responsibility to make a provision for a grandchild as this responsibility is that of the parents;

2) Where a grandchild is effectively adopted by a grandparent because of the loss of parents at a young age or has been taken in by the grandparent it is possible these circumstances could give rise to a valid claim. If a child has lived with the grandparent(s) this could be a significant factor but even so it would need to be shown that the deceased had assumed a role more like that of a parent supporting them financially and emotionally;

3) The existence of a family relationship between a grandparent and grandchild does not of itself establish an obligation to provide for the grandchild in their Will. There may be a moral obligation created in cases where, for example, the grandchild provides care;

4) Just because the grandparent is generous contributing, for example, to the grandchild’s education this does not necessarily translate into an obligation to provide for them;

5) Occasional or even frequent gifts do not make the grandchild wholly or partially dependent for the purposes of the Succession Act;

6) It is relevant to consider what inheritance or financial support a grandchild might fairly expect from their parents.

As well as rejecting the claim, the Court concluded that even if dependency had been demonstrated this would not have led to the granddaughter being granted a larger provision than the 20% she had been left in the 2017 Will. In the circumstances, to do so would have been an unwarranted interference with the deceased’s testamentary wishes.

What does it mean?

Unlike a spouse or child, a grandchild is not automatically eligible to make a family provision claim. They are only considered ‘eligible persons’ if they can establish they were wholly or partly dependent upon the deceased during their lifetime. They must also have a need for a provision based on their financial position. If a grandchild has received a provision from an estate, but it is inadequate in their eyes, they will need to prove it is not sufficient for their ‘proper maintenance, education and advancement in life’.

If the Court determines that a grandparent has failed in their moral duty to make provision for a valid claim, the Court will decide what constitutes an adequate provision for the grandchild.

Contesting the Will of a deceased grandparent may be possible in limited circumstances, but achieving a successful outcome can be more complicated than in other types of cases. In Ivy Chisak’s case, instead of an inheritance exceeding $180000, she was left with debts of $50000 after costs. This emphasises the importance of following the advice of an experienced expert practitioner in family provision claims.

Contact our Wills Dispute Lawyers in Sydney, NSW

A grandchild may be able to contest a Will, but only if they are able to establish dependency on the deceased. At Szabo & Associates Solicitors, we can make an assessment of your case and advise you on eligibility and the probability of making a successful claim. Please contact us on 02 9281 5088 or complete the online form.