Can I contest my grandmother’s Will?

Eligibility to contest a Will

For any person to be able to contest a Will in Victoria, they must prove that they are an eligible person, the deceased had a moral obligation to provide for their proper maintenance and support, and the distribution of the deceased’s estate as set out in the Will has failed to make adequate provision for the proper maintenance and support of the applicant.

While grandmothers may dote on and spoil their grandchildren, grandchildren are not considered to be natural recipients of a grandparent’s estate after their passing. For this reason, applicants who are grandchildren of the deceased must satisfy an additional test in order to be eligible to contest their grandparent’s will.

Factors the court considers when assessing a Will contest claim

Section 91(4) of the Administration and Probate Act 1958 (VIC) sets out the factors that the court must have regard to when assessing an applicant’s claim for provision or further provision.

In determining the amount of a provision to be made by a family provision order, if any, in respect to a grandchild, the court must take the following into account:

  • the degree to which, at the time of death, the grandmother had a moral duty to provide for the grandchild;
  • the degree to which the distribution of the deceased grandmother’s estate fails to make adequate provision for the proper maintenance and support of the grandchild;
  • in the case of a grandchild, the degree to which the grandchild is not capable, by reasonable means, of providing adequately for the grandchild’s proper maintenance and support; and
  • in the case of a grandchild, the degree to which the eligible person was wholly or partly dependent on the grandmother for the grandchild’s proper maintenance and support at the time of the grandmother’s death.

Meaning of dependency when contesting a will

Not only must it be demonstrated the applicant is a grandchild of the deceased, that they have need, and there has not been adequate provision for their maintenance and support, they must also demonstrate the degree to which they were wholly or partly dependent on the deceased for their proper maintenance and support at the time of their grandmother’s death.

The dependency must be more than merely receiving the usual gifts that a grandmother makes, even if those gifts are extravagant such as paying for overseas holidays or cars. The dependency required must be real dependence for the things that are necessary in life, such as accommodation, living expenses such as groceries or bills.

How the court determines adequate provision for proper maintenance and support

In determining whether an applicant has not received adequate provision for their proper maintenance and support, the Court considers the surrounding circumstances of the applicant and the other beneficiaries .

This is highly subjective as what may be adequate provision for one applicant may not be proper provision for another applicant. Indeed, In Vigolo v Bostin, it was stated that the word “proper” invites consideration of all the surrounding circumstances and what the court called “the station in life” of the parties and how they lived and how they expected to live given their “station in life”. Hence ‘adequate ‘and ‘proper’ provision is always relative and will differ from case to case.

However, the court will look to the following factors to help determine the surrounding circumstances of the applicant.

The size and nature of the estate

This is an important factor. The larger the estate, the greater the burden on the deceased to make “proper” provision for an eligible applicant. This factor also considers the nature of the estate as the court can make different decisions depending on whether the estate consists of real estate only or whether there are more easily divisible assets such as cash or shares.

The current and future financial resources (including earning capacity) and the financial needs of the grandchild and any other beneficiary

This factor focuses on the ability of the applicant and any other beneficiary to provide for themselves under the existing terms of the Will. Where it is determined that the applicant can provide for themselves and essentially has no real need, then the court may decline to make an order.

Similarly, if it is found that the intended beneficiaries have a strong ‘competing claim’ which means that they have very real needs themselves, then the court may decline to make an order for provision of the applicant.

Any physical, mental or intellectual disabilities of the grandchild or any beneficiary of the estate

Many cases arise where the physical, intellectual or mental disability of the grandchild gives rise to increased ‘need’ either because their condition does not permit them to work and/or because they require greater care and the costs of that care can be significant.

The deceased’s reason for making the Will in the terms that he/she did

There are often cases where the deceased may state or explain the reasons why they have drafted their Will in a particular way, especially if they have left a child or grandchild out of their or limited their bequest. The court is able to take into consideration any evidence of the testamentary intentions of the deceased even if those intentions are repeated by a witness or if they are contained in a written statement of the deceased found with the Will or any other place.

Get expert assistance with contesting a Will

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 grandmother’s Will.

Proving eligibility and a moral obligation to provide for a grandchild in a Will can be difficult if they are not prepared, which is why we always encourage grandchildren to seek legal advice as early as possible. With over 25 years of handling Will disputes if you enquire with Hentys Lawyers we will be able to assist determine whether you have reasonable grounds to make a claim against your grandmother’s estate.

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