We have all heard stories of family members unsatisfied by the legacies left to them in a relative’s Will. So, what happens if you haven’t left anything to your grandchildren or your grandchildren believe that you haven’t left them enough? Can grandchildren challenge a Will? If grandchildren are eligible, yes, they may be able to contest a Will.
If you are in this situation (or are a grandchild and believe you have been unfairly provided for), it’s important that you have all the necessary information. It is also highly recommended that you speak to an experienced Wills and estate lawyer.
Can grandchildren challenge a Will & are they eligible?
The Family Provision Act outlines ‘eligible persons’ who can make a claim on a deceased person’s estate if they feel that they have not been adequately provided for.
Spouses and children are automatically ‘eligible persons’. Grandchildren, however, do not automatically have legal standing to make a claim against your Will – they are only considered ‘eligible persons’ if they meet the two criteria outlined below.
When can grandchildren challenge a Will?
1. Dependency on the deceased grandparent
First, a grandchild must establish that they were wholly or partly dependent upon the deceased during their lifetime. Evidence that the Will-maker directly and immediately supported the grandchild through continued financial assistance is enough to mean that a grandchild is able to bring a claim against a Will.
A person making a Will is not expected to make provisions for their grandchildren unless these special circumstances are proved, (i.e. the Testator or Testatrix undertook a continuing and substantial responsibility to support that grandchild).
Can grandchildren challenge a Will if they received frequent gifts or incidental support? No, this is not enough for them to establish that they were dependent on the grandparent.
2. Claim for provision
Finally, the grandchild must also have a need for provision based on their current financial circumstances before any award is made to them.
If the grandchild received a provision from the estate, but it is inadequate, they need to prove that it is not enough for their proper maintenance, education and advancement in life. If the court determines that the grandparent failed in their moral duty to make a family provision for those who had a claim in their estate, they will then determine what is adequate provision for the grandchild.
Speak to a Wills & estate lawyer
If you feel you qualify as an eligible person and would just like to make an inquiry about how to successfully contest a Will, please call our Wills and probate lawyers on 1800 770 780. Owen Hodge Lawyers can give you the legal advice you need.
Alternatively, if you would like to prevent anyone from contesting your Will, Owen Hodge Lawyers can give you advice on what can and should be done about the matter.
Further information about contesting a Will
Frequently asked questions
Yes, the grandchild of the deceased can inherit the house if it is outlined in the Will.
This depends on a number of factors, including:
- The financial status of the grandparent’s estate/assets
- If the estate is insolvent or if there are debts
- How much the Will-maker wishes to bequeath to the grandchildren in the Will
- Lack of testamentary capacity
- The Will-maker was under undue influence
- The Will was part of a fraud
- The claimant believes they are entitled to more of the deceased estate