Can a Grandchild Contest a Will? (ACT)

Inheritance disputes are not unusual, especially when someone feels excluded or inadequately provided for in a will. In the Australian Capital Territory (ACT), the deceased’s spouse and children have the strongest claims under inheritance laws, but grandchildren also have standing to contest a will under certain circumstances. The Family Provision Act 1969 provides a legal framework for eligible grandchildren to contest a will if they can establish dependency or another qualifying condition. This article examines the conditions under which a grandchild can contest a will in the ACT, the legal processes involved, and the factors that the courts consider when assessing such claims.

When can a grandchild contest a will in the ACT?

While the law prioritises the rights of spouses and children of the deceased, it also acknowledges the potential rights of other individuals, including grandchildren, to file a Family Provision Claim under specific conditions. However, the Act does not automatically grant all grandchildren the right to contest a will, eligibility depends on factors such as whether the grandparent acted as a parental figure for the grandchild.

A grandchild has an unconditional right to make a claim against their grandparent’s will if they were legally adopted by their grandparents. In those circumstances, a grandchild has identical rights to a biological child of the deceased. A grandchild who was not formally adopted can only contest their grandparent’s will in the ACT under two circumstances:

Derivative eligibility

The first instance when a grandchild can make a claim is when the testator’s child (who is also the parent of the grandchild) has already passed away. In that case, the grandchild can effectively make a claim to inherit in place of their parent.

Dependence

The second way a grandchild could establish eligibility is if the testator acted in loco parentis for the grandchild. Essentially, if the grandparent stepped in to financially and/or emotionally maintain the grandchild in place of the parent, the grandchild has the right to expect the grandparent to provide for them as a parent would in the same circumstances.

A major factor in deciding whether the grandparent acted in the role of parent is whether the grandchild resided with the grandparent at any time and for what period of time. It is also particularly significant if the grandparent took responsibility for helping their adult grandchild to secure safe accommodation and provided assistance with living expenses.

While a grandchild can file a Family Provision Claim in the ACT if they meet the requirements outlined above, they then also have to prove that they received an inadequate provision from the deceased in the will. If there is a clear discrepancy between what a grandchild received and what they should be entitled to, claims can be resolved before trial through private negotiation or mediation with the executor of the estate. Otherwise, the grandchild can escalate the matter to a court hearing.

How does the court assess a grandchild’s claim?

When assessing a grandchild’s claim, the court considers several factors to determine whether adequate provision was made for the grandchild and whether their claim is reasonable. These factors include:

The grandchild’s age

Younger grandchildren, particularly minors, are more likely to receive favourable consideration because they are less likely to be financially independent and may require ongoing support for education, housing, and other necessities.

Financial position of the grandchild

The court examines the grandchild’s financial resources, including their income, assets, debts, and living expenses. A financially independent grandchild with stable employment is less likely to succeed in a claim compared to a grandchild who is struggling financially.

Disability or special needs

If the grandchild has a physical, intellectual, or mental disability that affects their ability to support themselves, the court is more likely to find that they require additional financial provision from the estate.

Nature of the relationship

The court evaluates the closeness of the relationship between the grandchild and the grandparent, focusing on whether the grandparent assumed a parental role or provided substantial emotional and financial support.

Contributions to the deceased’s estate

If the grandchild contributed to the deceased’s estate—for example, by providing caregiving or financial assistance—the court may take this into account when determining the fairness of the will.

Competing claims

The court must also balance the grandchild’s claim against the claims of other beneficiaries, such as the deceased’s spouse or children. The court seeks to distribute the estate in a way that is fair and equitable and consistent with the deceased’s obligations to all dependents.

Size of the estate

The court considers whether the estate is large enough to accommodate the grandchild’s claim without unreasonably diminishing the shares of other beneficiaries. In cases where the estate is modest, the grandchild’s claim may be less likely to succeed.

Jurisdiction and time limits

An eligible grandchild can make a Family Provision Claim to the Supreme Court as long as the deceased owned real property in the ACT or was a permanent resident in the Territory when they passed away. The claim must be lodged within six months of the date that the court granted probate. Late claims can only proceed with the court’s permission, and such permission is rarely granted unless there are compelling reasons for the delay. It is crucial for a grandchild to make an in-time claim, as the court will be less inclined to entertain a late claim from a grandchild with only a conditional right to claim.

If you believe you are eligible to contest your grandparent’s will, it is crucial to act promptly and seek legal advice. The process can be complex, but with proper guidance, you can navigate the legal system to achieve a fair outcome. Contact Go To Court Lawyers on 1300 636 846 for any legal assistance.