In New South Wales, grandchildren do not have an automatic right to challenge a Will. Courts have, as a general rule, recognised that a grandparent does not have a responsibility to make provision for a grandchild (that obligation rests on the parent of the grandchild) unless there are special circumstances.
In order to challenge a Will, a grandchild must:
- Have been wholly or partially dependent upon the deceased grandparent at any stage of their life;
- Satisfy the court that having regard to all the circumstances in the case (whether past or present) there are factors that warrant the making of the application and
- Satisfy the Court that at the time when the Court is considering the application, adequate provision for their proper maintenance, education or advancement of life has not been made by the Will of the deceased.
This means a grandchild must be able to show that the deceased grandparent directly supported them through continued financial assistance. Continued financial assistance means assistance provided on a regular and consistent basis for the grandchild’s health, safety and general wellbeing. It is not sufficient to show receipt of gifts of money or incidental assistance such as contributing funds for education.
Chapple v Wilcox
In Chapple v Wilcox (2014) NSW CA 392 the NSW Court of Appeal considered the issue of a grandchild’s right to challenge a grandparent’s Will. In that case, the deceased grandfather left the whole of his estate (which consisted of a rural property) to his only child, his daughter. His two adult grandsons challenged the Will. One of the grandsons settled his claim while the other continued.
The evidence disclosed that the grandson had lived with the deceased grandfather (along with his sibling and parents) and that after his mother separated from the grandson’s father, the deceased grandfather acted as a father figure to the grandson; paying for his schooling at Kings College and then a tertiary College and providing him with employment on the property following college for a period of 7 years. At the deceased’s grandfather’s suggestion, the grandson then undertook an apprenticeship as a plant mechanic. The grandson however had little contact with the deceased grandfather after leaving the property in 1983. At the time of the hearing the grandson was operating a tree loping and tree surgery business making a very modest income rather than using his skills as a mechanic or fitter which would have earned him a salary more than $100,000.00.
The deceased on the other hand daughter devoted a large part of her life to the deceased’s pastoral business and was part owner of the business assets. She assisted the deceased both in business and personal matters in his old age and lived and cared for him. The pastoral business (which formed the base of the estate) was borderline profitable and far from prosperous.
Despite the primary Judge noted that the grandsons had “developed an unhealthy sense of entitlement” and that they had “deluded themselves into thinking” that they had “a right to their grandfather’s property”, the judge set aside the provisions of the Will finding that community standards and expectations required the provision to be made for the grandson from the estate. This finding was however overturned by the NSW Court of Appeal.
The Court of Appeal found that while the judge was correct in having regard to “perceived prevailing community standards of what it is right and appropriate”, generally a grandparent does not have a responsibility to make provisions for a grandchild. Generosity by a grandparent such as contribution to the education of a child is not sufficient. A pattern that a grandparent occasionally or frequently made gifts does not make a grandchild wholly or partially dependent. Something more than the existence of a normal family relations and affections is required.
The Court recognised that there may be circumstances in which widely held community standards might expect a grandparent to make provisions for their grandchildren, such as where grandchildren have lost their parents at an early age or where the grandparent has cared for the grandchildren and acted in loco parentis (as a defacto parent).
The Court of Appeal found that the factual circumstances in this case did not give rise to a special relationship. The deceased grandfather had never stood in loco parentis for his grandson and although the grandson lived with the deceased he did so with his sibling, mother and father. Further, while there was a close relationship between the grandson and the deceased, the deceased being an authoritative figure and mentor to the grandson, it did not involve any special care or affection beyond that of a normal family relationship. The deceased financial support in terms of the grandson’s education and training were not beyond the frequently encountered situation of financial assistance being given by a grandparent.
To be successful in a claim a grandchild must show that the grandparent had for some significant time in the grandchild’s life, assumed a position more akin to a parent than to a grandparent with direct responsibility for the grandchild’s support and welfare or that the grandparent had a continuing and substantial responsibility to support the grandchild financially or emotionally.
If you believe you have a right to challenge a Will, Segelov Taylor will provide you advice and act on a ‘no win no fee’ basis in a family provisions claim. Please email or call our office on 8880 0550.