Contesting a Grandparent’s Will: A Guide to Family Provision Claims

Introduction

Grandchildren contesting wills in Australia face unique challenges, as there is no automatic right to make a claim against a grandparent’s estate. Instead, eligibility to contest a will depends on meeting strict legal requirements, most notably proving financial dependency on the deceased grandparent.

Understanding the family provision claims process is essential for any grandchild considering whether to make a claim. Given the complexity of these cases and the importance of time limits, seeking advice from a wills and estates lawyer can make a significant difference in navigating the process and assessing the strength of a potential claim.

A Grandchild’s Eligibility to Contest a Will

The General Rule: No Automatic Right for a Grandchild to Claim

Unlike a spouse or child, a grandchild does not have an automatic right to make a family provision claim against their grandparent’s estate. The fundamental rule is that the relationship of grandparent and grandchild alone is not enough to make a person eligible to contest a will.

In jurisdictions such as New South Wales, the Succession Act 2006 (NSW) lists a grandchild as someone who may be eligible, but this eligibility is conditional. To proceed with a claim, a grandchild must typically prove that they were dependent on the deceased grandparent at some point in time.

Establishing Dependency: The Key Hurdle for a Grandchild to Contest a Will

What Constitutes Being Wholly or Partly Dependent

For a grandchild to make a family provision claim, they must first prove that they were wholly or partly dependent on their deceased grandparent. This legal requirement involves demonstrating a consistent reliance on the grandparent for financial support related to maintenance and general well-being.

Courts make a clear distinction between true dependency and mere casual assistance. The support provided must go beyond occasional generosity and be for necessary living expenses.

Dependency is not established by:

• Occasional or even frequent gifts of money
• Incidental assistance, such as buying school shoes or providing pocket money
• Casual financial help given from time to time out of familial affection

Instead, a grandchild must show that the grandparent provided regular and provable contributions that were essential for their maintenance. For example, in the case of Broadus v Cradduck [2025] NSWSC 402, hospitality and casual financial assistance were not considered sufficient to qualify as partial dependency under the Succession Act 2006 (NSW).

Proving Your Dependency to the Court

The responsibility to prove dependency rests entirely on the grandchild making the claim. This means providing clear and convincing evidence to the court that demonstrates a direct and immediate reliance on the deceased for financial support.

A mere pattern of gifts is not enough to establish this connection. To substantiate a claim of dependency, a grandchild should be prepared to present concrete evidence, which may include:

• Financial records showing regular payments from the grandparent
• Proof of living arrangements, such as residing in a property owned by the deceased
• Documentation of the grandparent paying for significant expenses like education or medical bills

Dependence is often easier to establish if the grandparent played a significant role in the grandchild’s upbringing, particularly following the premature death of the grandchild’s parent.

Common Scenarios That May Establish a Moral Duty

Beyond direct financial dependency, certain circumstances can create a moral duty for a grandparent to provide for a grandchild in their will. These situations often involve the grandparent stepping into a parental role.

One key scenario is when a grandparent has acted in loco parentis, meaning they have taken on the responsibilities of a parent. This can occur if the grandchild’s parents have passed away or are otherwise unable to care for them. In such cases, the court may find that the grandparent had an obligation to provide for the grandchild’s future.

Another situation arises from what is known as derivative eligibility. For instance, if a grandchild’s parent (who is the child of the person who made the will) has already passed away, the grandchild may be able to make a claim in place of their deceased parent. This acknowledges that the grandchild has lost the potential for inheritance through their parent’s line.

Key Factors the Court Considers in a Family Provision Claim

The Grandchild’s Financial Position & Needs

Once a grandchild establishes their eligibility to make a claim, the court meticulously assesses their financial circumstances.

This evaluation determines whether the provision in the grandparent’s will was inadequate for their proper maintenance and advancement in life. The court scrutinises the grandchild’s complete financial picture to understand the true level of need.

Several specific factors are taken into account, including:

• Financial Resources: The court will look at the grandchild’s income, assets, debts, and overall living expenses; a claimant who is financially stable is less likely to succeed than one who is struggling.
• Age: Younger grandchildren, especially minors, may receive more favourable consideration because they are generally not financially independent and require ongoing support for education and upbringing.
• Disabilities or Special Needs: If a grandchild has a physical, intellectual, or mental disability that limits their ability to support themselves, the court is more likely to find that additional provision from the estate is necessary.

The Nature of the Grandparent-Grandchild Relationship

The court evaluates the quality and duration of the relationship, looking beyond biology to evidence of a meaningful bond. It considers whether the grandparent assumed a parental role or provided significant emotional and financial support throughout the grandchild’s life.

The types of contributions that can reinforce the grandchild’s claim include:

• Caregiving support – spending significant time assisting with daily needs or healthcare.
• Financial assistance – directly contributing money to the grandparent’s living expenses.
• Property maintenance – helping to maintain or improve the grandparent’s home or other assets.

The court may regard these efforts as strengthening their moral claim to a provision from the estate.

The Estate’s Size & Competing Claims from Other Beneficiaries

In every case, the court performs a delicate balancing act: the total value of the estate determines how easily an additional claim can be accommodated without disadvantaging others.

It then weighs the grandchild’s needs against those of all other beneficiaries and eligible persons. The goal is to distribute the estate in a manner that is fair and equitable, honouring the deceased’s obligations to all dependents and recognised beneficiaries.

Checklist for a Grandchild Considering a Will Contest

Assessing Your Eligibility & Grounds for a Claim

Before making a claim, it is essential to evaluate whether you meet the legal requirements. As a grandchild, you must first establish your eligibility, which typically involves proving that you were wholly or partly dependent on the deceased grandparent at some point.

Dependence must be direct and immediate; a simple pattern of gifts is generally not sufficient. In addition to dependency, you must also demonstrate a need for provision based on your current financial circumstances.

For jurisdictions like NSW, there is a further hurdle: you must convince the court that there are “Factors Warranting” the application. This means showing circumstances that would make you a natural person for the deceased to have recognised in their will, such as:

• Having a close relationship with the deceased
• Being raised in the same household as the deceased

Gathering Essential Evidence & Documentation

The responsibility of proving dependency and financial need falls on the grandchild making the claim. To build a strong case, you must gather clear and convincing evidence to support your position.

Simply stating that you were dependent is not enough; you need to substantiate it with documentation. Crucial evidence to support a family provision claim may include:

• Financial Records: Bank statements, money transfer receipts, or other documents that show regular and consistent financial assistance from your grandparent
• Proof of Cohabitation: If you lived with your grandparent, documents like utility bills, rental agreements, or official correspondence addressed to you at their residence can establish this
• Documentation of Major Expenses: Evidence that your grandparent paid for significant costs, such as education fees, medical bills, or housing expenses

Adhering to Strict Time Limits for Your Claim

Strict time limits apply when contesting a will in New South Wales, and failing to commence proceedings within the required period can result in the loss of your right to make a claim. Once the deadline has passed, the court will only grant an extension in limited and exceptional circumstances, making early action critical.

Under NSW succession law, a family provision claim must generally be filed within twelve months of the deceased person’s death. Being aware of this timeframe and acting promptly ensures that your claim is not barred on procedural grounds and allows your solicitor sufficient time to prepare the necessary documents and supporting evidence.

The Importance of Seeking Expert Legal Advice

Understanding the Risks & Potential Costs of a Claim

Pursuing a family provision claim carries significant financial risks if it is unsuccessful. Courts may order the losing party to pay the estate’s legal costs, and you cannot assume those costs will be reimbursed from estate funds.

Key hazards every grandchild should weigh up include:

• The court’s broad discretion to award costs against an unsuccessful claimant.
• Judicial reluctance to override a deliberate and rational will, which lowers the chance of success.

The case of Chisak v Presot [2022] NSWCA 100, illustrates these dangers. After her claim failed, the grandchild was left with $50,000 in debt when costs were awarded against her. This example underlines how a seemingly reasonable challenge can still produce a negative financial outcome.

How a Wills & Estates Lawyer Can Help Your Claim

Contesting a grandparent’s will is a complex process with strict legal requirements. An experienced wills and estates lawyer can evaluate your eligibility and prospects of success before any claim is filed.

When dependency must be proved, targeted legal advice becomes essential for gathering the evidence that supports your position.

In particular, a lawyer can:

• Assess your claim’s merits against legislative criteria and recent case law.
• Prepare and organise evidence (financial records, correspondence, witness statements) to demonstrate dependency.

An expert practitioner can guide you through the entire family provision claims process.

Their support may include:

• Explaining your legal rights and obligations in plain language.
• Collecting and lodging documentation within strict time limits.
• Ensuring all procedural rules are followed, minimising the risk of dismissal.

Conclusion

For a grandchild, contesting a will in Australia is possible but requires meeting strict legal criteria, most commonly proving financial dependency on the deceased grandparent. The success of a family provision claim hinges on demonstrating genuine need, the nature of the relationship, and adhering to strict time limits, making it a complex legal undertaking.

If you believe you may have grounds to make a claim on a grandparent’s estate, contact the experienced wills and estates lawyers at PBL Law Group for clear advice on your eligibility and to understand the strength of your potential family provision claim.

Frequently Asked Questions