Losing a loved one is one of the hardest things anyone ever has to deal with. Grief is the type of pain you feel intensely, both emotionally and physically. It can be especially difficult when faced with a Will estate dispute.
What Does It Mean To Contest A Will?
Contesting a Will is the process whereby someone argues there was no adequate provision made for them in someone's Will. To do so successfully requires an individual to demonstrate their financial need. They must also prove that the Will should have included some or a greater provision for them.
You have probably heard stories about family members locked in a fierce Will dispute. Sadly, this is not uncommon. Generally, this occurs when no Will is left. Or when someone feels slighted. Generally speaking, challenging a Will involves a child or current or ex-spouse. However, in certain cases, grandchildren may feel as though they were due more.
Can A Grandchild Contest a Grandparent's Will?
The short answer is yes; grandchildren can contest their grandparent's Will. However, before any attempt to do so, you should speak to estate litigation lawyers who can provide you with accurate advice. It isn't as simple as filing a case; you have to demonstrate that you have reason to believe you deserve a greater provision.
Large families are common, and with many parents working full-time, grandparents are increasingly part of their grandchildren's lives. Not only do working parents rely on them for childcare, but many also collect their grandchildren from school. Some may house families as they save for a home of their own. In this time, grandparent's rights have increased, with more support services available. As a result of this, many grandchildren feel as though they have been inadequately provided for in their grandparent's Will. If you were partly or wholly dependent on a deceased grandparent, you are entitled to contest their Will.
You can't simply claim you deserve more; you must be able to demonstrate to the court that you are an eligible person. Typically, only children and spouses are classed as eligible persons automatically. You must be able to establish that you were dependent (whether partly or wholly) on your grandparent during your life. If you can provide evidence of this, you may be able to classify yourself as an eligible person.
However, a grandparent doesn't have to provide for a grandchild in their Will, so you will need to show evidence of regular financial support. Regular gifts are not sufficient evidence, nor is incidental support.
Additionally, you would need to show that your current financial situation is insufficient. This could allow the court to rule in the grandchild's favour as it could be viewed as a failure of a grandparent's moral duty to provide for their family.
One such case has set the standard for what grandchildren must overcome when contesting a Will. In 2014, Chapple v Wilcox (NSWCA 392) was taken as far as the Supreme Court. When their grandfather died, two adult grandsons contested the Will. The entirety of the estate was left to his only child, their mother. While one grandson settled his claim quickly, the other took his further. He demonstrated that he had lived with the grandfather (with the rest of his family), and after his parent's separation, his grandfather had been a father figure to him. In addition to the emotional support, his grandfather paid for his schooling and college tuition. The grandfather then employed his grandson around his rural property for seven years thereafter. At his grandfather's encouragement, he pursued a plant mechanic apprenticeship.
Once the grandson moved from the property, he had very little contact with his grandfather. At the hearing, the court heard that he owned a small business and earned a modest income. Though his training and skills would have secured him a much higher paying position had he pursued them. While the deceased's daughter had remained involved in her father's business and was a part-owner. She had cared for him in his old age, as well as handling business matters.
Though the judge called the grandson entitled, he did receive a settlement of several hundred thousand dollars. However, the ruling was appealed. While the court agreed with much of the original judge's comments, they overturned his monetary award. They stated that educational generosity does not amount to a special relationship. While his grandson may have viewed him as a de-facto parent, the grandfather was not a de-facto parent as his entire family had lived on the property with the grandfather. The court deemed educational assistance as what many grandparents would do for grandchildren.
This should highlight just how difficult it is to contest a Will and show the importance of professional legal advice.
When To Seek Legal Help
For grandparents looking to write a Will, seek out the services of reputable Will and estate lawyers to guide your Will writing. By ensuring you have considered everyone and everything, you avoid the likelihood that your family will need to call in deceased estate lawyers and fight over money during intense grief.
If you are a grandchild and believe you are an eligible person and wish to contest a Will, AJB Stevens can offer assistance. If you are unsure whether you have sufficient evidence, but would like to discuss your case, do not hesitate to get in touch with us.