Unlike a spouse or child a grandchild by reason of that relationship does not automatically become an Eligible Person entitling the grandchild to challenge the Will. This is so because the Succession Act 2006 requires also that the grandchild be wholly or partially dependent on the deceased person at any particular time.
Was I dependant on the deceased?
Dependence is often established by living in the house owned by the deceased person, but this is not necessarily the case in circumstances where the grandchild also lives with their parent. In this sense the Court has held that dependence must be direct and immediate. Further, it has also been said by a Court that a grandparent providing a pattern of gifts to a grandchild does not, in itself, make the grandchild dependent.
Despite this, dependence may be established in circumstances where the grandparent has played a significant part in the upbringing of the grandchild, which will often be the case following the premature death of the grandchild's parent.
I was dependant on my grandparent - is there anything else I need to prove?
Eligibility does not mean that a claim will be successful, but enables the grandchild to bring the claim in the first instance.
As a further hurdle a grandchild needs to convince a Court that there are 'Factors Warranting' in making an order to disturb the provisions of the Will.
Factors warranting means that there must be circumstances which give the grandchild the status of a person who would generally be regarded as a natural object of testamentary recognition of the deceased person.
There are a number of ways in which a grandchild can establish 'Factors Warranting', most common are by the inclusion of the grandchild's name in the Will, or previous Will, being brought up in the same house of the deceased or having a close relationship.
Is there anything else the Court takes into account?
Once the Court is satisfied that the grandchild challenging the Will or estate was dependant on the deceased in their lifetime, and that there are factors which warrant the making of an order, the Court can proceed with determining whether the provision made in the Will was inadequate, and if so, whether an order should be made to disturb the term of the Will.
In performing this task the Court has regard to a range of matters including:
any family relationship, including the nature and duration of the relationship.
the nature and value of the estate.
the financial resources and needs of all interested parties.
any physical, intellectual or mental disability of all interested parties.
the age of the grandchild.
any contribution made to the estate or welfare of the deceased.
any provision made for the grandchild by the deceased before or after death.
whether the grandchild was being maintained, either wholly or partly, by the deceased person before the deceased person’s death.
whether any other person is liable to support the grandchild.
All cases have their own particular circumstances, and each of the above factors plays a part in determining whether a claim is ultimately successful.
As can be seen a grandchild faces a number of hurdles before they can make a successful challenge to a Will. While a general overview has been provided above there are a number of subtleties for each of the hurdles described above and it is important that you seek advice from the lawyers in the Contested Estates Division because they regularly appear before the Court in these types of applications.
If you are grandchild of a deceased person and wish to find out whether you have a case to challenge the Will and/or seek provision from the estate, then receive a no obligation assessment of your personal circumstances by an experienced estates lawyer, at no cost, by contacting us or commence our online assessment by clicking here.