We have all heard stories of family members unsatisfied by the legacies left to them in a relative’s Will. So, what happens if you haven’t left anything to your grandchildren or your grandchildren believe that you haven’t left them enough? Can grandchildren challenge a Will? If grandchildren are eligible, yes, they may be able to contest a Will.
If you are in this situation (or are a grandchild and believe you have been unfairly provided for), it’s important that you have all the necessary information. It is also highly recommended that you speak to an experienced Wills and estate lawyer.
Can grandchildren contest a Will & are they eligible?
The Family Provision Act outlines ‘eligible persons’ who can make a claim on a deceased person’s estate if they feel that they have not been adequately provided for.
Learn more:
Spouses and children are automatically ‘eligible persons’. Grandchildren, however, do not automatically have legal standing to make a claim against your Will – they are only considered ‘eligible persons’ if they meet the two criteria outlined below.
When can grandchildren contest a grandparents Will?
1. Dependency on the deceased grandparent
The process for grandchildren contesting a Will varies by state, but generally requires proving that the grandparent had a substantial responsibility for their care.
In NSW, grandchildren contesting a Will must provide evidence of financial dependency on the deceased to have a valid claim. First, a grandchild must establish that they were wholly or partly dependent upon the deceased during their lifetime. Evidence that the Will-maker directly and immediately supported the grandchild through continued financial assistance is enough to mean that a grandchild is able to bring a claim against a Will.
A person making a Will is not expected to make provisions for their grandchildren unless these special circumstances are proved, (i.e. the Testator or Testatrix undertook a continuing and substantial responsibility to support that grandchild).
Can grandchildren contest a Will if they received frequent gifts or incidental support? No, this is not enough for them to establish that they were dependent on the grandparent.
Here is an example of dependency on a deceased grandparent:
Emma was raised primarily by her grandparents after her parents faced financial hardships and were unable to provide stable care. From the age of 10, she lived full-time with her grandmother, who covered all of her living expenses, including food, clothing, school fees, and medical care. Her grandmother also provided a stable home environment, ensuring Emma had a roof over her head and financial support for her education.
Throughout Emma’s teenage years and into early adulthood, her grandmother continued to provide substantial financial assistance, paying for university tuition and daily expenses while Emma studied full-time. Since Emma had no other financial support system, she was wholly dependent on her grandmother for both financial and emotional stability.
Upon her grandmother’s passing, Emma discovered she had not been included in the Will. Given the continued and substantial responsibility her grandmother undertook in supporting her, Emma may have grounds to challenge the Will and seek provision from the estate, as she was genuinely dependent on the deceased during their lifetime.
2. What evidence is required to contest a Will?
If a grandchild wishes to contest a Will on the grounds of dependency, they must provide strong evidence demonstrating that the deceased grandparent undertook a continuing and substantial responsibility for their financial and personal well-being. Below is a list of key documents and proof that can support a claim:
1. Financial Records and Bank Statements
– Evidence of regular financial support, such as payments for education, rent, medical expenses, or living costs.
– Bank statements showing consistent transfers from the deceased to the grandchild.
2. Legal and Government Documents
– Centrelink or tax records showing financial dependency or shared household status.
– Legal guardianship documents (if applicable) demonstrating that the grandparent had primary care responsibilities.
3. Written Correspondence and Personal Records
– Letters, emails, or text messages from the deceased confirming financial support or promises of inheritance.
– Diary entries or notes from the grandparent outlining their financial contributions.
4. Household and Living Arrangements Proof
– Rental agreements or utility bills showing the grandchild resided with the deceased.
– School enrolment records listing the grandparent as the financial provider.
5. Witness Testimonies and Statutory Declarations
– Statements from relatives, family friends, teachers, or neighbours verifying the deceased’s financial and personal support.
– Affidavits from professionals (e.g., doctors or social workers) confirming the deceased played a primary role in the grandchild’s care.
3. Claim for provision
Finally, the grandchild must also have a need for provision based on their current financial circumstances before any award is made to them.
If the grandchild received a provision from the estate but it is inadequate, they need to prove that it is not enough for their proper maintenance, education, and advancement in life. If the court determines that the grandparent failed in their moral duty to make a family provision for those who had a claim in their estate, they will then determine what is adequate provision for the grandchild.
Learn more:
How does the Will contest process work?
Initial steps to contest a Will
If you believe you have grounds to contest a Will in New South Wales (NSW), the first step is to obtain a copy of the Will and seek legal advice.
– How to Obtain a Copy of the Will – Under NSW law, certain individuals (such as beneficiaries, family members, and those with potential claims) have the right to request a copy of the Will. You can obtain it from:
- The executor of the estate
- The NSW Supreme Court Probate Registry (if probate has been granted)
- The solicitor handling the estate
– Consult a Lawyer – Before proceeding, consult a Wills & Estates lawyer to assess whether you have valid legal grounds to contest the Will, such as financial dependency, inadequate provision, or undue influence. A lawyer will also guide you through gathering necessary evidence for your claim.
Legal deadlines for contesting a Will
NSW has strict time limits for contesting a Will. Under the Succession Act 2006 (NSW):
– A claim must be filed within 12 months from the date of the deceased’s passing.
– Extensions may be granted, but only in exceptional cases, such as lack of awareness of the Will or extenuating family circumstances.
– If probate has already been granted, acting quickly is crucial to prevent asset distribution.
Missing the deadline can result in the claim being dismissed, so seeking legal advice early is essential.
Court proceedings and mediation
Once a claim is filed, the legal process typically follows these steps:
– Filing the Claim – The claimant (person contesting the Will) must file an application with the Supreme Court of NSW, supported by relevant evidence.
– Notification to the Executor & Beneficiaries – The executor and all beneficiaries named in the Will are formally notified of the claim.
– Mediation (Settlement Discussions) – Before going to court, parties are usually required to attend mediation, where they attempt to reach an agreement without formal litigation.
– Court Hearing (if no settlement is reached) – If mediation fails, the matter proceeds to a court hearing, where a judge will review the evidence and determine a fair distribution of the estate.
The entire process can take several months to years, depending on the complexity of the case and willingness of parties to settle. Mediation is often encouraged to resolve disputes faster and reduce legal costs.
Speak to a Wills & estate lawyer
If you feel you qualify as an eligible person and would just like to make an enquiry about how to successfully contest a Will, please call our Wills and probate lawyers on 1800 770 780. Owen Hodge Lawyers can give you the legal advice you need.
Alternatively, if you would like to prevent anyone from contesting your Will, Owen Hodge Lawyers can give you advice on what can and should be done about the matter, so contact us today or view our client testimonials.
Further information about contesting a Will
Wills & Estate Team
FAQs About Grandchildren Contesting a Will
In NSW, grandchildren have 12 months from the date of the deceased’s passing to contest a Will under the Succession Act 2006 (NSW). Exceptions may apply if there are extraordinary circumstances, but claims filed after this period require court approval. Seeking legal advice early is recommended.
A family provision claim is a legal application made under the Succession Act 2006 (NSW) by an eligible person who believes they have been unfairly left out of a Will or not adequately provided for. This claim allows the court to reallocate the deceased’s estate to ensure proper provision for the claimant’s financial needs and well-being.
Who Can Make a Family Provision Claim?
Eligible persons include:
– Spouses or de facto partners of the deceased
– Children (including adopted and stepchildren)
– Former spouses
– Grandchildren who were financially dependent on the deceased
– Other persons who lived with or were dependent on the deceased
Time Limit:
A claim must be filed within 12 months of the deceased’s death, although extensions may be granted in exceptional cases.
The court considers factors such as financial need, relationship with the deceased, contributions made to the estate, and the size of the estate when deciding on a claim. Seeking legal advice early is recommended to assess eligibility and strengthen the case.
You may be eligible to contest a Will in NSW if you are an eligible person under the Succession Act 2006 (NSW), such as a spouse, de facto partner, child, grandchild (if financially dependent), or someone in a close personal relationship with the deceased. You must also prove inadequate provision for your financial needs. Legal advice can help assess your eligibility, so contact our team at Owen Hodge Lawyers to find out more.
Yes, you can contest a Will in Australia even if you live overseas. However, you must meet the eligibility criteria under the relevant state’s succession laws. In general, you need to:
✔ Be an eligible person (e.g., spouse, child, de facto partner, financially dependent grandchild).
✔ Prove that you have not been adequately provided for in the Will.
✔ File the claim within the state’s legal deadline (e.g., 12 months from the date of death in NSW).
Since legal processes differ between Australian states, and international factors (such as jurisdiction and evidence submission) may apply, it’s advisable to seek legal advice from an Australian estate lawyer to navigate the claim effectively.
The testator is the person who made the Will. In a family provision claim, their role is indirect, as the court examines their intentions, financial provisions, and responsibilities toward eligible claimants. The court considers the testator’s reasons for their distributions, any obligations they had, and whether adequate provision was made for the claimant’s proper maintenance and support. Remember, for those questioning, ‘Can grandchildren contest a Will in NSW?’, seeking professional legal advice is the best way to determine their eligibility to make a claim.