Grandchildren Contesting a Will
Summary by Eric Butler. Law Society Accredited Specialist in Wills & Estates Law. I've worked the last 24 years doing nothing but family provision claims.
Free Call: 1800 960 156
Grandchildren are eligible to contest a will and make a Family Provision Claim however the law is quit different in each State. A grandchild can claim that he or she has been left without adequate provision from the estate of their deceased grandparent but these cases can sometimes be a little more difficult than other cases and you are advised to discuss any potential claim with your preferred lawyer.
To be be eligible to make a successful claim you must be a grandchild who was, at any particular time, wholly or partly dependent on the deceased person and you were at that time or any other time a member of the household which is deceased person was a member.
So, you must have lived in the same household as the deceased and been dependant upon the deceased. There is no rule about how long you need to have lived in the same household with the deceased or how dependant you have been upon the deceased. If your parents or one of your parents were living with you and the deceased at the time you claim you were living in the same household with the deceased the court may determine that you were actually dependant upon your parent not your grandparent.
You need to demonstrate that you have complied with both rules: 'Household' and 'Dependency' but they do not need to be at the same time. For example you may have lived in the same 'Household' for a year or two when you were say 5 years of age but not 'Dependent' at time and 10 years later you may have found yourself dependent upon your grandparent. In that case you would be eligible to claim.
There is no rule about how long in the 'Household" or how much 'Dependency' however the longer the 'Household' and the more 'Dependency' the stronger your claim for provision out of the estate. All of this also depends upon the strength of claims by other competitors or beneficiaries named in the will.
If you are a grandchild you are eligible to make a claim. However, to achieve a successful claim you need to demonstrate that you were wholly or partly dependent upon the deceased for your proper maintenance and support and that at the time of death the deceased had a moral duty to provide for you for your proper maintenance and support and that the distribution of the deceased estate failed to make adequate provision for your proper maintenance and support.
Grandchildren are not specifically named as being eligible to contest a will by making a Family Provision Claim in Queensland. In Queensland, if you are to succeed with a claim against the estate of your grandparent you need to demonstrate that you were wholly or substantially maintained or supported by your grandparent at the time of his or her death.
Exception to the Rule.
Children are eligible to make a family provision claim in each State so if by chance your grandparent of grandparents had adopted you then in that case you would not actually be a 'grandchild' but a 'child' within the law of each State and entitled to apply for provision out of the estate without the need to prove dependency.
As a child making a Family Provision Claim all you need to demonstrate to the court is your need for provision and that the deceased failed to make adequate provision for your proper maintenance and support.
The success of any claim will depend upon the extent of your financial need and that or your competitors.