Family Provision Applications brought by Grandchildren

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A grandchild of a deceased person may potentially be eligible to make a Family Provision Application against the estate of a grandparent in every State and Territory of Australia except Tasmania.

The Court will consider the usual factors including:

  1. whether adequate and proper provision has been made for the applicant; and
  2. the need of the applicant.

However, simply because grandchildren have the standing to apply for provision does not mean that the Courts are particularly welcoming to such applications – it has been observed that no moral obligation lies on grandparents to provide for the maintenance and support of grandchildren by virtue of that relationship alone.[1] That moral obligation, according to prevailing community standards, rests on parents. Having said this, we do note that South Australian courts are more likely to be generous to grandchild applications, due to the unqualified nature of a grandchild’s standing to apply pursuant to the Inheritance (Family Provision) Act 1972.[2]

In circumstances where the parents of an applicant grandchild are still living and have themselves benefited under the Will of the deceased grandparent, the likelihood of success in an application for provision by the grandchild is small. In such a case, the prevailing community standards would presume that the children of the deceased, to whom provision has been made, will continue to provide for their own children, and that wealth will be passed down through the generations of a family in this manner.

In the absence of a quasi-parental relationship between the grandparent and grandchildren, or a particular genuine need, a pattern of generosity by the grandparent such as making contributions to the grandchild’s education or making generous gifts does not convert the relationship to one which establishes a higher moral responsibility to make testamentary provision.[3]

Successful applications have been made by grandchildren where their parents are no longer living, or the grandparent acted in a quasi-parental role with the applicant. In such cases, the moral duty of a grandparent to provide provision is more easily established.

The needs of grandchildren may also be considered by the Court and included in any further provision made to children.  In such a circumstance, the applicant would be the child of the Will maker, but the order for provision would be directed to a need for that child to provide for their own children (the Will maker’s grandchildren).

In a New South Wales decision involving a large estate, the Court made an order for further provision to a child of the deceased for the costs of educating the deceased’s grandchildren at a private school.[4] Although this case does not necessarily provide an authority that grandparents owe a moral duty to contribute to the education of their grandchildren, it was noted that ‘there may well be a considerable portion of grandparents in the community in the 21st Century who need to give consideration to the education of grandchildren’.[5]

There are ways for a Will maker to draft their Will which may substantially mitigate the risk of such applications being brought against their Estate for provision, and we recommend that legal advice be sought at the time of making a Will.

 

[1] MacEwan Shaw v Shaw (2003) VSC 95.

[2] Dal Pont (2013) ‘Law of Succession’, LexisNexis Butterworths Australia, 599.

[3] MacEwan Shaw v Shaw (2003) VSC 95.

[4] McCarthy v McCarthy (2010) NSWCA 103.

[5] McCarthy v McCarthy (2010) NSWCA 103 at [37].