Grandchildren & The Estates of their Grandparents

26 AUG 2020

 

Grandchildren & The Estates of their Grandparents: Can the Grandkids Challenge?

When a person passes away, their Estate (if they have a Will) will pass in accordance with that Will.  A Will however, is not always challenge-proof.  The law stipulates the people who are eligible to challenge your Estate if “adequate provision” has not been left to them.

While children fall-squarely within the list of people who can challenge an Estate, generally, grandchildren fall outside of that list.  The hard and fast rule is, no – grandchildren are not eligible to challenge the Estate of their grandparents solely on the basis that they are a grandchild.

While they cannot challenge on the sole basis they are a grandchild, there are ways they are able to challenge.  To challenge, they would need to prove that they have been, at any particular time, wholly or partly dependent on their deceased grandparent.

This means that if a grandchild has been financially dependent on their grandparent, they may be eligible to challenge the Estate of their grandparent. 

The Court looked at this in the 2014 case of Wilcox v Chapple.  In this case, an adult grandson (Robert Wilcox) challenged the Estate of his late grandfather.  The only beneficiary of the Will in this case, was the deceased’s only daughter (Robert’s mother).  Robert was 44 at the time he made the initial claim against the Estate, owed approximately $107,000.00 to the Australian Taxation Office and was receiving Centrelink benefits.

In the first hearing, the Court heard that Robert’s grandfather had over the years, acted as a parental figure to Robert and his brother, Benjamin, after their parents’ marriage broke down.  The boys had lived with him for a time and he paid for their private education.  While once dependent, Robert had not lived with the deceased in more than 20 years.  He had not visited his grandfather for a decade.

The Court initially held that Robert was eligible to make a claim on his grandfather’s Estate and that “adequate provision” had not been made for him.  At the end of the initial hearing, the Court granted Robert the sum of $387,000.00 from the Estate.  

On appeal however, the decision was overturned, with the Court stating that an order for provision must be in line with “perceived prevailing community standards of what is right and appropriate.”  The Court found that Robert’s claim did not support the conclusion that Robert’s grandfather, in accordance with community standards, should have left Robert any provision under his Will.

While the decision was overturned on appeal, this case is an example that there are exceptions to the rules and that, depending on the circumstances and the level of dependency, grandchildren may be able to challenge their grandparents Estates.

To discuss your Estate queries, please contact our Estate Planning Department on 02 4626 5077 or via email at kwolthers@marsdens.net.au.

The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication. 

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