CAN A GRANDCHILD CHALLENGE A WILL?

Being a grandchild is a start but they also have to establish that they were “at any particular time, wholly or partly dependent on the deceased grandparent’. Once previous dependency is established the grandchild has to also establish that there are factors warranting an application.

 FEDE v DELL’ARTE 2009 NSWSC is an example.

 The granddaughter had been dependent on her grandfather. Following the separation of her parents in 1988, she and her mother had moved into the grandparents’ property and the majority of the family income came from the grandfather.

So the grandchild was eligible but she had to do more: she had to establish that, having regard to all the circumstances of the case (whether past or present), there were factors which warranted the making of the application. In other words, given the past circumstances, would most people believe that the grandfather should have left her something/something more in his will?

In this case:

•        Her grandfather did recognise her in the will and did give her some minor provision (taking into account his very large estate)

•        he had written a previous will in which he had given her half of his estate

•        he also thought it necessary to explain in the will the reasons why he was making the limited provision for her

The court decided she was eligible and that there were factors warranting her application, it increased the provision made for her in the will.

Willmakers do have the freedom to decide who will inherit their property but they need to be aware that if they provide insufficiently for eligible people, then courts have the discretion to interfere with their wishes. Willmakers who are considering leaving grandchildren who were dependent on them out of their wills, or instead just providing them with a “nominal” sum, should take advice from a solicitor. They may need to make compromises to avoid a legal challenge.