“As a general rule, a grandparent does not have a responsibility to make provision for a grandchild; that obligation rests on the parent of the grandchild”
(Justice Hallen in Bowditch v NSW Trustee & Guardian )
Grandchildren are able to make a claim for family provision, in certain circumstances. A grandchild needs to overcome three hurdles in order to be successful in a claim for family provision (Section 59(1) Succession Act 2006):
- They are an eligible person;
- There are factors which warrant the making of the application; and
- Adequate provision for the proper maintenance, education and advancement in life has not been made for the applicant from the deceased’s estate.
This article will only deal with (a) and (b) above. Paragraph (c) is something which every claimant for family provision must show to the Court and therefore should be addressed separately.
Whilst a child of a deceased person is automatically eligible to make a claim for family provision, a grandchild needs to also have been “wholly or partly dependent on the deceased person” at any particular time. This is something which needs to be proved before a grandchild’s claim can even be considered by the Court.
What does “wholly or partly dependent on” actually mean?
In Austin v NSW Trustee & Guardian, a 2016 case before the Supreme Court of New South Wales, Justice Hallen said the following:-
- The Act contains no definition of the words “dependent on”. There are no “tests”, as such, for the meaning of that term. It should be given its plain grammatical meaning.
- In general, the word “dependent” connotes a person who relies upon support of another, financial and/or emotional. Dependency is not limited only to the class of persons actually in receipt of financial assistance from the deceased. The authorities reveal that the words are wide enough to cover any person who would naturally rely upon, or look to, the deceased, rather than to others, for anything necessary, or desirable, for his, or her, maintenance and support.
- But the question of dependency, whether whole or partial, is a complex question of fact….It is not to be determined upon theoretical considerations. It is “the actual fact of dependence or reliance on the earnings of another for support that is the test”
As can be seen from the above words, the determination of dependency can be quite difficult, and will depend exclusively on the individual circumstances of the case. However, even if a grandchild can establish they were dependant on the deceased, this will generally only satisfy the Court that the grandchild is an eligible person (paragraph (a) above).
What else needs to be shown?
Assuming a grandchild is able to show the Court that they were dependant to some degree on their deceased grandparent, what else needs to be proved in order to be successful in a claim for provision from their grandparent’s estate?
Paragraph (b) listed at the beginning of this article relates to factors which a grandchild will need to show the Court exist in their claim for family provision.
The factors warranting component of a claim was described by the Court in Re Fulop, where Justice McLelland said:
Factors which when added to facts which render the applicant an ‘eligible person’ give him or her the status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased.
The mere relationship of a grandchild and grandparent will not, on its own, be enough for a grandchild to be considered a natural testamentary object of a deceased grandparent. Similarly, the Court has found that the receipt of regular birthday and Christmas presents by a grandchild will also be insufficient. Something greater needs to be shown, such as the provision of accommodation by a grandparent for a grandchild or a continuing and substantial responsibility for that grandchild.
Only once a grandchild applicant can show to the Court that he or she is firstly, an eligible person, and secondly, that there are factors warranting the making of an order for provision will the Court then determine whether a grandchild has been left adequate provision from their grandparent’s estate.
Determination of these requirements will almost always depend on particular facts of a case. It is crucial that a potential claimant seek legal advice. For an obligation free consultation, please contact your nearest Turner Freeman office to be put in touch with one of our experienced Wills and Estates lawyers.