Generally, a person has the right to make a Will and leave their property to whomever they like. However in some circumstances, a limited group of family members (also known as an “eligible person”) can contest a Will.
So, can grandchildren challenge a Will? If the Court considers that an eligible person (such as a grandchild) has not received adequate provision from the estate of the deceased person, then the terms of the Will can be varied to make such provision.
Whether an eligible person will be successful in contesting a Will, will depend upon whether the deceased person was considered to have had a moral obligation to make provision for that person in their Will. Claims for further provision are called family provision claims.
- Can grandchildren challenge a Will? Are they eligible?
- How the Court determines if a grandchild is entitled to inheritance
- When can a Will be contested by grandchildren?
- Contesting a Will before probate
Can Grandchildren Challenge A Will & Are They Eligible?
Specific family members of the deceased are the only eligible persons that can bring a claim for further provision. They include:
- A spouse of the deceased (current, former and de facto)
- A child of the deceased
- A child of the deceased’s spouse who was maintained by the deceased immediately before his/her death
- A grandchild of the deceased
- A parent or sibling of the deceased (Section 6 of the Inheritance (Family Provision) Act 1972) (in certain circumstances)
Circumstances in Which Grandchildren Cannot Contest a Will
It is important to understand that a claim by a grandchild of the deceased against the grandparent’s estate will not automatically be successful.
The relationship between a grandparent and their grandchildren does not, in itself, create an obligation to make provision for that grandchild, as that responsibility rests on the parents of those children. If a grandchild lived with his/her parent(s), who provided accommodation, food and clothing, this would ordinarily mean that a court would not award the grandchild further provision.
Without some special need or unusual circumstance, current community standards would not consider a grandparent responsible for providing for a grandchild. So in this case, can grandchildren challenge a Will and be successful? Most often, the answer is no.
Circumstances in Which Grandchildren Can Contest a Will
The circumstances of each case are important, and the fact that a child’s parent may have died before the grandparent is a relevant factor. Other factors that influence whether grandchildren can challenge a Will include:
- The grandparent was a member of the household and had a close relationship with the grandchild.
- The grandparent supported the grandchild with financial resources or otherwise. The grandparent may have provided continued financial assistance to the grandchild during their life such that the grandchild was wholly or partly dependent on the deceased grandparent.
- The grandchild may have lived with the grandparent and provided company and significant care for the grandparent during their ageing years.
How the Court Decides if a Grandchild is Entitled to Inheritance
The Court deals with family provision claims by answering two questions.
The first question is whether the provision received by the grandchild in the Will, if any, is adequate for his or her proper maintenance, education and advancement in life (Section 7 Inheritance (Family Provision) Act 1972). To answer this question, all relevant circumstances must be considered, including:
- The size and nature of the estate of the deceased grandparent;
- The nature and quality of the relationship between the grandchild and the deceased grandparent;
- The grandchild’s individual character and conduct;
- The nature and extent of the grandchild’s present and future needs;
- Any contribution, financial or otherwise, by the grandchild to the deceased grandparent; and
- The nature and relative strength of the claims of those taking benefits under the Will.
The second question arises if, after considering a) to f) above, the Court decides that the grandchild has been left without adequate provision. Then the Court would consider what, in all the circumstances, is adequate provision. The same considerations in a) to f) apply to this question.
In making its decision the Court follows two principles:
- It will not interfere with a Will except to the extent that is necessary to make adequate provision for the proper maintenance, education and advancement in life of each claimant; and
- What is “proper” will depend on what is an appropriate standard in all the circumstances of the case.
The Court will not have to decide if the Will is “fair”. The question is whether, in all the circumstances, the deceased grandparent failed in their moral duty to provide for those who had a claim on their estate.
When Can a Will Be Challenged by Grandchildren?
A Will cannot be formally contested prior to the grant of probate unless the contest relates to the validity of the Will and the capacity of the deceased to have made the Will.
If the validity of the will is not in question and the will is being contested by a grandchild to claim provision or further provision from the estate, then there exists a six (6) month time limit once probate has been granted in which to bring a claim.
This does not mean that your intention to make a claim cannot be communicated to the executor of the estate prior to the grant of probate, but no formal claim can be filed in Court. In fact, the settlement of family provision claims is often achieved by early negotiations. The formality of recording the settlement by way of a Deed of Settlement and Compromise normally occurs as soon as probate is granted.
As part of the process of applying for Probate, the executor must file a statement of assets and liabilities of the estate. It is therefore clear at this stage what is in the estate and available to be challenged. If there is animosity between those benefiting under the Will and those who wish to contest, then sometimes it is difficult to obtain information about what assets are in the estate or even obtain a copy of the Will prior to the grant of probate.
Contesting a Will Before Probate
Challenging the validity of a will:
It is sometimes argued that:
- the deceased lacked mental capacity when their Will was made;
- the deceased did not understand what was in their Will; or
- they were unduly influenced into signing the Will.
If a deceased was elderly and their Will was changed within a short period before their death to benefit one family member to the exclusion of others (such as a formerly named grandchild beneficiary), then this may raise suspicion. These circumstances would justify grandchildren seeking advice from wills and estates lawyers as to whether they can challenge a Will.
In any of these circumstances, the time to contest the Will is prior to probate being granted.
A caveat may need to be filed to prevent probate being granted.
Contesting the gifts in a valid Will:
Knowing how to successfully contest a Will to obtain further provision from the estate, prior to a grant of probate, has its advantages. It may increase your opportunity and the time within which you have to communicate your claim for a greater share of the estate to the executor and other beneficiaries. It allows early negotiations to take place with the beneficiaries who you will be wanting to forgo a portion of their inheritance.
To contest a Will prior to probate being granted, you would need to know the name of the executor of the Will and, ideally, have a copy of the Will. It is important to understand, however, that even as a beneficiary in a Will you have no right to a copy of the Will prior to the grant of probate (at which time the Will is placed on the public record).
If you have the necessary information, your probate lawyer would write to the executor and advise them of your intention to make a claim, request a copy of the Will and details of the assets and liabilities of the estate.
Once probate has been granted, it can be accessed from the Courts SA website. This will provide you with a copy of the Will (annexed to the Grant of Probate) and the name and address of the executor. Your next step should be to seek advice from an estate lawyer who would, if instructed to proceed with a claim, advise the executor of your intention to make a claim and request a copy of the statement of assets and liabilities of the estate.
To summarise, can grandchildren challenge a Will? Yes, but it is not always straightforward. For further information please contact Emma on 8362 6400 or email Emma Marinucci. Join our mailing list to receive updates and advice on current issues.
People also ask:
If you successfully contest a Will then, ordinarily, your costs will be paid by the estate. If, however, you contest a Will and are unsuccessful, then you will be responsible for your own legal costs. Some clients may wish to consider engaging lawyers on a no win no fee basis.
The executor of a Will is responsible for carrying out the wishes of the deceased in accordance with the deceased’s Will. It is the executor’s job to locate and secure all assets of the deceased (“estate assets”), apply for a Grant of Probate (if this is required), locate and communicate with beneficiaries and deal with any issues relating to the estate assets.
The executor is also the one who is responsible for dealing with the deceased’s body, including arranging a funeral, cremation or burial.
An informal Will is a one that does not comply with the formal requirements of section 8 of the Wills Act, 1936 which sets out the requirements as to writing and execution of a Will. Examples of informal Wills include those not signed by a witness, those signed by the Will-maker and one witness, those not signed by the Will-maker, a video Will etc.