Can a grandchild contest a will?

Posted on June 5th, 2015

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By Robert Lindsay

Robert Lindsay is a Director at Mullane & Lindsay in Newcastle and leads our Commercial & Property Law team.

Section 57 of the Succession Act lists those individuals who can contest the Will of a deceased person. They are termed “eligible persons” in the Act.

Section 57 (1) (e) provides that a grandchild of the deceased can contest a Will if he or she has been wholly or partly dependent on the deceased person (i.e. their grandparent). The fact that a person is the grandchild of the deceased is not sufficient to be an eligible person. The grandchild must establish that they have been in some way dependant on the deceased. Naturally, it is not difficult to establish that a grandchild has been wholly dependant on his or her grandparent if they live with the grandparent and are reared by the grandparent. However, to determine whether a grandchild has been partly dependant on his or her grandparent, the facts must be taken into consideration. If a grandchild simply visits the grandparent and has a holiday then part dependency is unlikely to be established. If however the grandchild goes to stay with his or her grandparent for periods of time out of necessity and stays at the grandparents home and the grandparent cares for the child then it is more likely that partial dependency will be established. This may occur where the grandchild’s parent or parents are unable to care for the grandchild because of sickness or perhaps some other reason.

The fact that a person is the grandchild of the deceased does not mean that the grandchild is an eligible person and can contest the Will. The grandchild must establish to the court that he or she has been wholly or partly dependant on the grandparent who is now deceased in order to be eligible to make a claim in the Estate.

Robert Lindsay is a Director at Mullane & Lindsay, and practises extensively in Commercial Law, Property Law and Wills & Estate Planning. If you require any assistance in this area please contact Robert Lindsay to arrange a consultation or contact our Newcastle office. 

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