In New South Wales, grandchildren do not have an automatic right to challenge a will of their grandparent. Generally, courts recognise that there is no responsibility to make adequate provision for a grandchild; this obligation would normally fall on a child’s parent.
However, there may be special circumstances that make a grandchild eligible to make a claim. 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.
A grandchild must be able to show that the deceased grandparent provided on a regular and consistent basis for the grandchild’s health, safety and general well-being.
It is not sufficient to show that the grandparent gave gifts of money or incidental assistance to prove 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.
Evidence was given that the grandson, his brother and parents had all lived with the deceased grandfather. After his mother separated from his father, the deceased grandfather acted as a father figure; paying for his private schooling and then further tertiary studies and providing him with employment on the property for a period of 7 years. At the deceased’s grandfather’s suggestion, he undertook an apprenticeship as a plant mechanic. The grandson had little contact with the deceased grandfather after leaving the property in 1983. At the time of the hearing, the grandson was earning a modest income operating a tree lopping business.
The deceased’s daughter had 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 but far from prosperous.
Despite the primary Judge noting 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 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 provision for a grandchild. A grandparent’s generosity in contributing to the education of a child is not sufficient. Occasional or frequent gifts is not enough to show that a grandchild was wholly or partially dependent on their grandparent. The Court recognised that there may be circumstances in which widely held community standards might expect a grandparent to make provision 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 as a de facto parent.
The Court of Appeal found that the circumstances in this case did not give rise to a special relationship. The deceased grandfather had never acted as a de facto parent and while the grandson had lived with the deceased, so had his sibling and both parents. Further, there was no special care or affection beyond that of a normal family relationship. The deceased’s financial support in terms of his grandson’s education and training were not unusual assistance offered by a grandparent.
The case reveals that a grandchild needs to show that the relationship was more similar to a parent/child relationship, with direct responsibility for the grandchild’s welfare or that the grandparent had a responsibility to support the grandchild financially or emotionally.
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