The process of challenging a Will is arduous under the best of circumstances because the courts give great deference to the last wishes of the deceased. As such, in the event that a grandchild wants to challenge the Will of a grandparent, there are very specific circumstances that must be proven.
To begin with, since a grandchild is not a person of obligation to a grandparent, there is no legal requirement that a grandparent gift any part of their estate to a grandchild via their Will. While a grandparent can choose to do so, the expectation is not one codified in the law.
The only caveat to this rule is if the grandchild were economically dependent upon the grandparent. This cannot be proven via the grandparent occasionally giving the grandchild money, or buying sporadic gifts. But rather, it must take the form of the grandparent having been acting in loco parentis. Meaning, the grandparent must have been tasked with the true financial responsibility for the child in a manner similar to a biological parent.
What if I wish to contest my grandparent’s estate?
First, if a grandchild is going to contest the Will of a grandparent they must do it within the statutorily allowed time frame. All Wills in New South Wales Australia must be contested within 12 months from the date of death.
Since there is no legal obligation for a grandparent to bequeath anything to a grandchild, if a grandchild wants to contest the Will of a grandparent for having been excluded from receiving, the grandchild must take the same route as any other non-entitled individual. Initially, the grandchild must prove one of the following in order to be granted permission to proceed with requesting an alteration of a grandparents Will;
- The Will was drafted while the grandparent was under the undue influence of another person or circumstance
- The Will as a whole, or in part, is fraudulent
- The Will is a forgery
- The grandparent lacked the mental capacity to enter into the Will as a legal document
Each of these categories require specific proofs. If a Will is being challenged for undue influence, the grandchild will have to prove that someone, or some circumstance, materially interfered with the decision making power of the Testator. Any form of proven coercion of the Testator, can be considered proof of undue influence. To prove the will is fraudulent is a significant burden.
For the court to find fraudulent circumstances there must be evidence that the Grandparent was tricked or deceived into signing the Will. In the instance of claiming the Will is a forgery, the grandchild must establish that the Grandparent did not author the Will or did not sign the Will themselves. Finally, for a Will to be challenged due to incapacity, the grandchild would have to prove the grandparent was senile, had a medical condition that made it impossible for them to think or act with clear understanding, or was under the influence of a drug that altered their abilities. If none of these four conditions can be proven to the satisfaction of the court, the Will will be considered valid and enforceable.
If a Will is going to be contested it is also best if the process occurs before the court grants probate. If probate is granted, the individual contesting the Will is going to be required to show cause for rescinding the grant to probate.
In the event that a grandchild is able to prove the Will invalid, there can be a redistribution of assets. However, the grandchild will not necessarily be entitled to the share they are professing is theirs. Rather, the estate of the grandparent will now be distributed in accordance with the laws of intestacy, meaning as if the person died without having ever made a Will. As such, there will be specific rules of distribution that the court will be mandated to follow. These rules often include specific amounts left to spouses, first; followed by living siblings, parents, children and possibly grandchildren.
In the event that you find yourself in need of assistance regarding a Will, please contact the law offices of Owen Hodge Lawyers. At Owen Hodge, we are always happy to assist clients in understanding the full ramifications of any and all of your legal needs. Please feel free to call us at your earliest convenience to schedule a consultation at 1800 770 780.