Introduction

Contesting a will is a significant legal step, especially for grandchildren in New South Wales. While grandchildren do not have an automatic right to contest a will, they may do so under specific circumstances. This guide explores the conditions under which a grandchild can contest a will, focusing on eligibility, evidence requirements, and the legal process involved.

This article will provide essential information for grandchildren considering a will contest, including understanding dependency requirements, gathering necessary evidence, and navigating the legal system. It also highlights key considerations such as time limits and the importance of legal advice to ensure a well-prepared case.

Contesting vs. Challenging a Will: Understanding the Difference

Before delving into the specifics of your claim as a grandchild, it’s crucial to understand a key legal distinction. The terms “contesting” and “challenging” a will sound similar, but they refer to two very different legal actions. Knowing the difference will help you determine the correct path for your situation.

Basis of the Claim	Contesting a Will (Family Provision Claim)	Challenging a Will
The Argument	“My grandparent’s will is valid, but they didn’t provide for me fairly, especially given our relationship and my dependency on them.”	“My grandparent’s will is fundamentally invalid and should be thrown out.”
The Goal	To ask the court to alter the will’s distribution so you receive a fair share from your grandparent’s estate for your proper maintenance and support.	To have the will declared void, causing the estate to be distributed according to a previous, valid will or the rules of intestacy (as if there was no will).
Common Grounds	As a grandchild, your grounds would be proving you were wholly or partly dependent on your grandparent and were left with inadequate provision for your future needs.	Believing your grandparent lacked the mental capacity (e.g., due to dementia) when they made the will, was pressured by another family member (undue influence), or the will itself was fraudulent or improperly signed.

In short, as a grandchild, you contest the will when you are seeking fair provision from the estate because of your dependency and needs. You challenge the will when you believe the document itself is invalid and illegitimate.

This guide focuses specifically on contesting a will, which is the legal path a grandchild takes when seeking adequate provision from their grandparent’s estate. If you believe your grandparent’s will is invalid due to issues like coercion or their mental state, you would need to explore the process of challenging the validity of a will.

With this distinction in mind, let’s explore the requirements for a grandchild to contest a will.

Eligibility & Dependency Requirements

Dependence on the Deceased

According to the Succession Act 2006 (NSW), a grandchild must demonstrate that they were wholly or partly dependent on the deceased during their lifetime. This dependency is typically financial but can also include emotional support.

What constitutes dependence includes:

Type of Dependence	Description
Regular Financial Support	The deceased provided consistent financial assistance for needs like education, living expenses, or medical care. Occasional gifts are not sufficient.
Living Arrangements	The grandchild lived with the deceased or relied on them for housing, such as the deceased providing a home or paying rent.
Parental Role	The deceased acted in loco parentis (in place of a parent), providing care and support, often due to absent parents.

Key Factors for a Successful Claim

In addition to dependency, the court considers several factors to determine if a claim is warranted. These factors help assess whether the deceased should have provided for the grandchild in their will:

Factor	Court Consideration
Nature of the Relationship	The court evaluates the closeness of the relationship. A loving, supportive bond may justify a claim, while estrangement could weaken it.
Financial Needs	The grandchild’s current financial situation is assessed. Limited resources or significant debts can support a claim.
Contributions to the Deceased	Any contributions the grandchild made to the deceased’s well-being, such as providing care, are taken into account.
Provision in the Will	The court may find it unjust if the grandchild received inadequate or no provision, especially if they were dependent on the deceased.

By understanding these eligibility and dependency requirements, grandchildren can better assess their position and determine if they have grounds to contest a will in NSW.

Grounds for a Grandchild to Contest a Will

Claiming a Moral Right to Inheritance

A grandchild may contest a will if they believe they had a moral entitlement to inherit from their grandparent, even if they were not adequately provided for in the will. This moral right is not automatic but can be asserted under specific circumstances.

For instance, if a grandchild was raised by their grandparent or received regular financial support, they may argue that they should have been considered in the will. To successfully assert this moral right, the grandchild must demonstrate that they were dependent on the deceased or had a close relationship that justifies such a claim.

Key factors supporting a moral right to inheritance include:

Factor	Description
Dependency	The grandchild was financially or emotionally dependent on the deceased.
Close Relationship	The grandchild maintained a significant and ongoing relationship with the grandparent.
Parental Role	The grandparent acted in place of a parent, providing essential care and support.

Contesting Inadequate Estate Provision

A grandchild may also contest a will if they received little or no provision from the estate. In such cases, they may need to file a family provision claim. This approach is particularly relevant in situations where the grandchild was dependent on the deceased or had established a close relationship that justifies a larger share of the estate.

When considering whether estate provision was inadequate, several factors come into play:

Factor	Consideration for Inadequate Provision
Financial Dependency	The grandchild relied on the deceased for living expenses, education, or other financial needs.
Close Relationship	The grandchild had a significant and ongoing relationship with the grandparent.
Current Needs	The grandchild has present financial needs that were not adequately addressed by the will.

By understanding these factors, a grandchild can determine if they have grounds to contest a will and seek a fair share of the estate.

The Legal Process for Contesting a Will 

Taking Initial Steps

The process begins with obtaining a copy of the will, which can be requested from the executor, the NSW Supreme Court Probate Registry, or the solicitor handling the estate. Consulting an experienced estate lawyer is essential to assess the validity of the claim and gather necessary evidence.

Legal advice helps evaluate whether the grandchild meets the eligibility criteria, such as financial dependency or moral entitlement. Before proceeding further, you should focus on:

Initial Step	Description
Obtaining the Will	This is the first step to understand the provisions made and identify potential grounds for contesting.
Seeking Legal Advice	A lawyer specialising in wills and estates can provide guidance on the strength of the claim and the evidence required.
Gathering Evidence	This includes financial records, bank statements, and witness testimonies to support dependency claims.

Legal Deadlines & Court Proceedings

In NSW, a family provision claim must be filed within 12 months from the deceased’s passing. Missing this deadline can result in the claim being dismissed, making timely legal advice crucial.

The court process typically involves several sequential steps:

Step in Court Process	Description
Filing the Claim	Submitting an application with the Supreme Court, supported by relevant evidence.
Notification	The executor and all beneficiaries are formally informed of the claim.
Mediation	Parties attempt to reach a settlement agreement to resolve the dispute without litigation.
Court Hearing	If no agreement is reached via mediation, the matter proceeds to a court hearing for a judicial decision.

The entire process can take several months to years, depending on the case’s complexity. Additionally, mediation is often encouraged to resolve disputes faster and reduce legal costs.

Case Studies Illustrating the Process

Chapple v Wilcox

The case of Chapple v Wilcox [2014] NSWCA 392 highlights the challenges a grandchild may face when contesting a will in NSW. In this matter, a grandson contested his grandfather’s will, claiming he had been dependent on him during his lifetime.

The court heard that the grandson had:

• Lived with the testator for a period
• Received financial support, including payment for education
• Worked on the rural property

However, the court ultimately found that the grandson did not meet the criteria for dependency required to contest the will successfully.

Key points from this case include:

Key Takeaway	Explanation from the Case
Dependency Requirement	The court emphasised that occasional financial support or living arrangements do not automatically establish dependency, especially if contact diminished over time.
Moral Responsibility	The court ruled that a grandparent has no inherent moral obligation to provide for a grandchild unless there is clear evidence of dependency or a special relationship.
Outcome	The grandson’s claim was dismissed, reinforcing the high standard required for grandchildren to prove eligibility to contest a will.

This case underscores the importance of demonstrating clear, ongoing dependency to contest a will successfully.

Ivy Chisak

In Chisak v Presot [2022] NSWCA 100, the NSW Court of Appeal expanded the eligibility criteria for grandchildren to contest a will. Ivy Chisak, who had limited contact with her grandmother after childhood, was initially denied her claim. However, the Court of Appeal ruled that her short periods of dependency during childhood visits were sufficient to establish eligibility.

Key aspects of this case include:

Key Takeaway	Explanation from the Case
Partial Dependency	The court accepted that partial dependency during childhood visits was sufficient to establish eligibility, even if contact was sporadic and ended years ago.
Moral Responsibility	The decision highlighted that grandchildren who spend time with grandparents in a parental-like role may have grounds to contest a will, even if contact ceases later.
Outcome	While eligibility was confirmed, the court found the 20% share already provided in the will was adequate, so her claim for a larger portion was dismissed.

This case demonstrates how courts may interpret dependency more flexibly, potentially broadening opportunities for grandchildren to contest a will.

Conclusion

Contesting a will as a grandchild in New South Wales is a complex legal process that requires careful consideration of eligibility, dependency, and legal deadlines. Grandchildren must demonstrate financial or emotional dependency on the deceased and meet specific criteria under the Succession Act 2006 to be eligible to contest a will. The process involves gathering evidence, understanding legal deadlines, and potentially navigating court proceedings.

If you believe you have grounds to contest a will or need guidance on your rights as a grandchild, it is essential to seek legal advice from experienced wills and estate lawyers. Contact PBL Law Group in Sydney today to discuss your situation and ensure your rights are protected. Their expertise in family provision claims can provide you with the support and guidance you need to navigate this challenging process effectively.

Frequently Asked Questions