Can Grandchildren Contest a Will?

Grandchildren will be eligble to contest their grandparent's will under the family provision regime if they meet the eligbility criteria set out in section 57 of the Succession Act.  Specifically, a grandchild must demonstrate that:

• They were wholly or partly dependent on their grandparent for a period of time; and
• Given the facts of the case, there are factors warranting the making of a family provision application.

However, a family provision claim by a grandchild will only be successful where they can demonstrate, in addition to the above, that they have been left without adequate provision for their maintenance, education or advancement in life.

In Grover v NSW Trustee & Guardian, Grover, the deceased's only grandchild, applied for family provision after being excluded from his grandfather's will.

The deceased, Robert John Real, died at 86 and left a will gifting all his real property to his friend, Donna Costigan, and divided the residue of the estate equally between Donna and the deceased's great-grandchildren. The deceased did not make any provision for Grover, his only grandchild.

The relevant circumstances were as follows: Grover’s father had become a quadriplegic as a result of an accident when Grover was 2, after which the father returned to live with the deceased and Grover remained with his mother. For a period of time when Grover was 15/16, he lived with the deceased and assisted the deceased to care for his father. Grover’s father predeceased the deceased. At the time of making the will, the deceased identified Grover as a potential claimant, however, he noted that he only spent school holidays with him and briefly resided with him. 

The Court held that Grover was an eligible person, noting the following:

1. Grover had been partially dependent on the deceased for a point in time , although the extent of financial dependence was limited. During the period he lived with the deceased, he was provided with accommodation and board. Moreover, Grover was considered to be emotionally dependent on the deceased as, given his father’s condition, the deceased had played a significant role in his life. It was also noted that the deceased, when making his will, did not expressly deny that Grover had been dependent on him.
2. There were factors warranting the making of Grover’s application, namely the close relationship and emotional bond between Grover and the deceased, that Grover was the deceased’s closest blood relative, and the whole of Grover’s father’s estate had passed to the deceased rather than Grover. Moreover, Grover could not expect to inherit anything substantial from his mother and Grover had been identified as a beneficiary in prior wills.

The Court held that Grover had been left without adequate provision for his proper maintenance or advancement in life and made an order that he receive a $225,000 provision from the estate.