14 December 2022

Family Provision claims and grandchildren in WA

contest a will

We do a lot of estate litigation, acting for both claimants and defendants- and over the last 12 months, we’ve noticed an increase in the number of Family Provision Act claims being made. But in particular, we’ve seen a significant rise in the number of claims being made by grandchildren.

Many people don’t know that grandchildren can make claims against a deceased grandparent at all.  They can, and in increasing numbers they are.

There are two different ways grandchildren can claim.  The first is where the grandchild was being wholly or partially maintained by their grandparent immediately before they died- that is very commonly seen where grandparents are paying school fees for a grandchild for example.

But the second type of claim is a little lesser known.  Where a parent of the grandchild has died before the grandparent, the grandchild can ‘trace’ their parents claim up the line.    This is significant because this sort of claim exists regardless of whether the grandparent was supporting their grandchild or not. In this sort of claim, the grandchild sits in the shoes of their parent, in a way, which elevates them over other grandchildren who may be in the family whose parents are still alive.

The rationale behind this provision is that the grandparent assumes some of the deceased parent’s moral obligation to maintain their children, and that any money left to the parent may have indirectly benefitted the grandchild.

Many people are unaware of this this and stumble upon it by chance when they come to discuss estate administration, or the validity of a Will.   It also affects how people draft their wills, because they may never have contemplated that their grandchildren may be able to make such a claim.

Unfortunately, there is likely to be a large number of grandchildren in Western Australia struggling to meet their financial needs because they are unaware of the help potentially available to them.

If you are struggling and think that the laws in this article might assist you, please reach out to us for a free, 15-minute consultation.

Brandon Hetherington has considerable experience across the realms of Wills and estate planning, probate and family provision claims, property law, commercial law and litigation. Brandon’s work has seen him appear frequently across the Magistrates Court, District Court, Supreme Court, and the State Administrative Tribunal.