Large families with complex structures are becoming increasingly common throughout Australia. With a rise in families having both parents working full time, grandparents are having a much greater involvement in their grandchildren’s lives in comparison to a few decades ago.
In fact, about 27% of Australian working mothers rely on their parents for childcare, and due to the difficult property market at current, a fair proportion of couples are living with their parents whilst having children so to save to buy a house.
Consequently, this has led to an increase in the number of grandchildren contesting Wills.
When is a grandchild eligible?
Remember, for any person to contest a Will in Victoria, they must prove that (1) they are an eligible person, (2) the deceased had a moral obligation to provide for their proper maintenance and support and (3) the distribution of the deceased’s estate as set out in the Will has failed to make adequate provision for the said proper maintenance and support.
In Victoria, simply ‘being a grandchild’ is not enough for the courts to consider the grandchild eligible. Instead, the grandchild must also prove that they were dependent on the deceased at some stage throughout their lifetime; obviously the longer the period and more substantial the period, the better (1st element – eligibility).
Once eligible, the grandchild must also show that they have a need for further provision; or in other words, that the deceased has a moral obligation to provide for the applicant’s proper maintenance and support and have failed to do so in their current Will.
Factors court considers when determining adequate provision
In determining whether an applicant has not received adequate provision, the Court considers what in all the circumstances would be a proper level of provision appropriate for the applicant.
In doing so they look to the following factors:
- The deceased’s reason for making the Will in the terms that he/she did;
- any evidence about the deceased’s relationship with the applicant;
- obligations/responsibilities the deceased had to the applicant;
- any physical or mental disability of the applicant;
- the applicant’s character;
- the financial resources and needs of the applicant;
- the size and nature of the deceased’s estate; and
- the relationship between the deceased and other person’s who have legitimate claims upon their estate.
As a result, the claim is comparative. This means that a claim might be successful where the Estate is worth $5 million dollars, but might not be successful where the Estate is worth $400,000.
The importance of proving a dependency – Case Study
In the 2016 Victorian case of Missen v Missen the grandchild of the deceased, Lucas, failed in his application for further provision from his grandfather’s Estate, as the Court found that the deceased had no moral obligation to provide for the applicant’s proper maintenance and support.
The counsel for Lucas argued that the deceased was morally obligated to provide for the applicant because: Lucas’ father died when he was 5 years old and he has since been denied the ongoing financial support that would normally be provided by a father; Lucas’ mother is terminally ill and it is unknown whether she can financially continue to support him; although there was minimal contact between Lucas and his grandfather, this was at no fault of Lucas who was only 12 at the time of his grandfather’s death; and, as the Estate is a substantial size, a generous approach should be justified.
However, despite all this, the court could not look past one substantial factor – that Lucas was never actually dependent upon the deceased at any stage of his life. As a result, the judge held that it would “offend community standards” if he was to grant any sort of provision from the deceased’s Estate, especially considering Lucas had already been given a “substantial nest egg” from his father’s estate. Accordingly, the application was dismissed.
It is important to understand that a Will maker can choose whether to include their grandchildren in the Will, and that grandchildren do not automatically have a legal standing to make a claim against their grandparent’s Will.
As evidenced by the above case, proving eligibility and a moral obligation can be difficult for grandchildren if they are not prepared, which is why we always encourage grandchildren to seek legal advice as early as possible and to know that Hentys will be there with them every step of the way. For more information or assistance in resolving Will Disputes, do not hesitate to contact our expert Estate Lawyers today.