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Are grandchildren considered eligible for contesting a will in Victoria? The short answer: yes and no. Here, we’re going to unpack the situations in which a grandchild is legally entitled to a portion of an estate, and instances where they are not.
While we’ll cover the matter generally in this article, we offer a free consultation with one of our solicitors for more personalised legal advice on a will’s grounding and distribution.
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If you’re considering contesting a will, you may have come across the terms ‘Family Provision Claims’ or ‘Testator’s Family Maintenance (TFM) Claims.’ These refer to the legal processes and entitlements under Australian family provision legislation whereby an eligible claimant can seek increased provision from a deceased person’s estate.
The legislation — the Administration and Probate Act 1958 for Victorians — establishes the specific criteria for who can file a claim and under which circumstances can provision be sought.
As a general rule, anyone who can prove dependency on the deceased person — whether financially or domestically — may have grounds to file a family provision claim, provided they believe that they aren’t adequately accounted for within the will.
In Victoria specifically, those who are considered an ‘eligible person’ and may be eligible to be a will’s beneficiary include:
Details do matter in Family Provision Claims. The child of the deceased, for example, has strong grounds to file a claim provided that they are under 18 years of age, or up to 25 if they are a full-time student. That’s not to say that an adult child cannot file a claim, however, if they’re able to prove dependency — such as if they’re disabled and relied on the deceased person for their care.
Does Victorian family provision legislation include grandchildren, then? A grandchild may fit under the ‘dependent’ category. Unlike the child of the deceased person, who has automatic legal entitlements to their parent’s estate, the grandparent-grandchild relationship does not come part-in-parcel with the same provisions. With that said, there are instances where a grandchild may be legally entitled to their grandparent’s estate:
In assessing the merits of the grandchild’s claim, the court will consider various factors: their age, financial situation, character, the deceased’s obligations to the grandchild, disabilities and the value of the estate, among other factors.
If the grandchild can prove that they are financially dependent on the deceased and are incapable of maintaining a reasonable standard of living on their own, then yes: a grandchild can contest a will in Victoria.
There are various situations that may yield ineligibility for a grandchild hoping to file a family provision claim. If the grandchild was already adequately provided for in the will, their ability to file a claim may be inhibited. Similarly, if the grandchild was not in any form of financial dependence or relationship of dependency with their grandparent, the grounds for a successful claim may be weak.
If the grandchild has been estranged from the grandparent with no communication for an extended period of time, this may also impact the claim’s validity. And, if the grandchild had previously received financial support from their grandparents during their lifetime, the court may deem that the provision has adequately been made and that further provisions are unwarranted.
Family provision claims are situational. If you think you may be eligible, the best thing you can do is gather evidence that proves dependency, and then speak with a family provision claim lawyer who can provide you with personalised legal advice and determine the potential validity of your claim.
Grandchildren — or anyone contesting a will in Victoria — have six months to file their claim following the date of probate, which refers to the date on which the Victorian Supreme Court issues a grant of probate. A grant of probate authorises the executor of the will (the person appointed to distribute the estate) to proceed with the paying off of the deceased person’s debts and their estate’s distribution.
This means that a grandchild looking to file a claim doesn’t have too long to do so — the sooner they can gather evidence of dependence and speak with a solicitor, the better. If the above terminology seems confusing, don’t worry: the role of a solicitor isn’t only to provide legal representation and maximise your chances of success, but also to ensure that you have a sound understanding of the claim’s process.
Following a consultation with your lawyer, if you decide to proceed with your claim, there are generally two ways by which a Family Provision Claim progresses: mediation and litigation.
Mediation: This is where a neutral third party will assess the situation and aim to facilitate a compromise between each of the involved parties. Mediation is generally the less adversarial route in comparison to litigation, as well as being more time and cost-effective. During mediation, the legal representatives of each party advocate for their positions and attempt to reach a mutually acceptable agreement. While most Family Provision Claims are settled within mediation, there are cases that are unable to reach a resolution and require litigation.
Litigation: This is the process where the claim progresses through court to reach a resolution. During litigation, the court will thoroughly examine the evidence presented by both parties and make a decision based on the merit of the case and its legal basis. Litigation is both timely and costly — fortunately, there are ways that claimants can manage the cost implications, such as through no-win, no-fee agreements. These agreements mean that claimants are only required to pay — both the case-associate and legal cost — if their case is successful.
If you’re considering filing a claim, there are two initial steps to take:
A grandchild can contest a will if they can prove that they were financially dependent on the deceased person and are now unable to maintain a reasonable standard of living due to their death. There are exceptions, however. The court will consider a range of factors to determine whether a claim is valid, such as the nature and extent of the relationship, the grandchild’s financial situation, any mental or physical impairments, the value of the estate and other relevant factors.
If you’re considering contesting your grandparent’s will, speak with one of our solicitors. And, don’t let the costs of legal action get in the way: our no-win, no-fee policy allows you to gain access to our wealth of legal experience and resources at no personal financial risk. Through this policy, we only get paid if we win your case, and the amount we’re paid is based on a predetermined amount. We have this policy in place as we believe it’s our responsibility to remove the barriers between our community and competent legal advice and representation.
Book a free consultation with one of our family provision lawyers for obligation-free legal advice.
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