How can a grandchild challenge a Will?
Large families with complex family structures, that include multiple grandchildren, are becoming increasingly common throughout Australia and NSW. Grandparents are also becoming more and more involved in their grandchildren’s lives, which has come about because there has been:
- An increase in families that have both parents working full-time, with grandparents helping mind the kids and pick them up from school. In fact, 27% of Australian working mothers rely on their grandparents for childcare.
- An increase in the number of couples living with their parents to save for a house of their own, with those couples having babies during this time.
- An increased awareness of the rights grandparents have in relation to their grandchildren, including support services for grandparents initiated by organisations like COTA (www.cotansw.com.au).
Consequently, this has caused an increase in the number of grandchildren contesting Wills in pursuit of a fair inheritance.
The inheritance rights of grandchildren in relation to family provision claims vary in each state. According to the Succession Act, grandchildren are eligible to contest a will if they were wholly or partly dependent upon the grandparent who passed away at any stage during their life.
If you are a grandfather or grandmother and you want to understand your grandchildren’s rights, or you are a grandchild who wishes to contest a will, contact us today.
Related Article from Turnbull Hill Lawyers:
How do I get to see my grandchildren? (family law)
What factors do the Court consider when determining eligibility for a grandchild to contest a Will?
To prove eligibility to contest a will, the grandchild must establish that they were dependent on the deceased during their lifetime. The grandchild (or grandchildren) must provide evidence to support this dependency and show that the deceased directly supported them through continued financial assistance.
Secondly, the grandchild must show that they have a need for provision, based on their current financial circumstances, before any changes are made to the Will.
Proving eligibility can be difficult for the grandchild if they are not prepared, which is why we encourage grandchildren to seek legal advice as early as possible. We can advise on the steps in the process and assist them in preparing the evidence required to prove eligibility.
Do grandchildren have to be included in a Will?
No. The Will maker can choose whether or not to include provisions for their grandchildren. It is important to understand that grandchildren do not automatically have legal rights to make a claim against their grandparent’s Will.
What constitutes “continued financial assistance”?
Financial assistance that has been provided on a regular, consistent and provable basis, that is directly related to the grandchild’s health, safety and general well-being. Giving regular gifts of money ($50 here and there) or providing incidental assistance (like buying the child a new pair of school shoes) does not constitute continued financial assistance.