April Kennedy, Attwood Marshall Lawyers Senior Associate for Estate Litigation, looks at a recent New South Wales Supreme Court of Appeal decision that has changed the landscape for grandchildren contesting their grandparents’ estates and has made it easier to bring a claim for provision.
Summary – Chisak v Presot [2022] NSWCA 100
The NSW Court of Appeal recently handed down a decision which has broadened the criteria for who is eligible to contest or bring a claim against an estate, making it easier for grandchildren to make a claim for further provision from their deceased grandparents’ estates.
The applicant was Ivy Chisak, who at the time of the primary decision was a 26-year-old woman and the only granddaughter of the deceased.
Ivy’s mother – the deceased’s only child – died when Ivy was a baby. Throughout her childhood Ivy had lived with her father in Brisbane and in regional New South Wales. She had stayed with her grandmother on a few occasions between 2000 and 2003, for up to a month at a time during the school holidays. Ivy did not see her grandmother after 2003, when she was eight, at her father’s insistence. They stayed in touch by phone until 2007, after which there had been no further contact. Ivy was effectively estranged from her grandmother at the date of her death.
In 2009, the deceased made a Will leaving various cash gifts to friends and the balance of the estate to Ivy. In 2017, Ivy’s grandmother changed her ill reducing her share to 20 per cent of the estate. The value of the deceased’s estate was approximately $1.2 million. Ivy made two claims on her grandmother’s estate:
- She challenged the Will and alleged that her grandmother lacked capacity when she drew up the 2017 Will; and
- She contested the Will, arguing that the provision left to her in the 2017 will was not adequate.
Ivy lost her case at first instance in the Supreme Court, which lead her to appeal the decision to the Court of Appeal. The New South Wales Court of Appeal rejected her challenge to the validity of her grandmother’s Will, upholding the Supreme Court of NSW’s decision that the deceased did have capacity when she made her 2017 will. In the primary decision, the Court did not accept that Ivy was an eligible person to make a provision claim on her grandmother’s estate. The Court was not satisfied that Ivy was at any particular time wholly or partly dependent on her grandmother in view of the sporadic nature of the time she spent with her grandmother as a young child.
The Court of Appeal however came to a different conclusion about Ivy’s eligibility and found that she was indeed eligible to file a Family Provision Application as a grandchild because she was partly dependent on her grandmother during the periods she was in her grandmother’s care as a child. The Court considered that the deceased had some parental responsibility during those periods in Ivy’s early childhood and that Ivy’s dependence on her grandmother on these occasions could not be regarded as ‘minimal’.
The Court’s decision in this matter about claims by grandchildren and partial dependency has changed the necessary ingredients for the definition of being financially dependent in family provision claims by grandchildren. It is not unusual for a grandparent to take in their grandchild over the school holidays for days or weeks at a time, and in many families, children spend significant time with their grandparents while their parents work.
The key takeaway is that such an arrangement of casual time spent during holiday periods limited to several years might open the door to that grandchild making a claim on their grandparents’ estate in the future.
Eligibility
A Family Provision Application is a process that allows certain individuals to contest a Will for a share (or larger share) from the estate of the deceased person.
Such claims can only be brought by an “eligible person,” including the wife or husband of the deceased (current or former), a person who was living in a de facto relationship with the deceased (including same sex couples) and a child of the deceased, including an adopted child.
In New South Wales, where Ivy’s case was heard, a person who was at any time wholly or partly dependent on the deceased is also eligible. They may be a grandchild of the deceased, or a member of the household who was in a close personal relationship with the deceased. In order to be considered an eligible person, an applicant must be able to prove their dependency.
Traditionally, to make an application for further provision, a grandchild must satisfy the court that they were partly or wholly dependent on the deceased. Usually, this meant that they must have been in a surrogate parent/child relationship. These types of claims are generally limited to grandchildren whose parents have died or were absent during children and where they were effectively raised by a grandparent.
There is an additional hurdle for grandchildren making a claim on their grandparent’s estate in that they must demonstrate that they have “factors warranting” the making of their claim. This is not defined in any statute. Rather, the grandchild making a claim on their estate must be able to demonstrate that they ought to have been considered as a natural object of testamentary recognition by the deceased (i.e. that provision should have been provided for them based on their circumstances and relationship with the deceased).
Road to success, or not
There are strict deadlines for bringing a Family Provision Application. Each jurisdiction has different limitations and processes, however in all cases it is important to act quickly. If you don’t give formal notice within the required time limit, the assets of the estate may be distributed and your rights may be severely impacted and prejudiced.
In Queensland, under S.41 of the Succession Act, a claimant has six months from the date of death to provide written notice to the executor or administrator of the estate that they will be contesting the Will. They must then file formal court proceedings within 9 months from the date of death.
In New South Wales, under Section 58 of the Succession Act, a claimant must file formal proceedings within 12 months from the date of death.
In Victoria, under Section 99 of the Administration and Probate Act 1958, a claimant has 6 months from the date that a grant of probate is issued by the Supreme Court to bring a claim.
The main hurdle for an applicant is establishing that they are an eligible person, as set out above.
If the court finds that the applicant has been left without adequate provision from the estate for their maintenance and support, the court will then decide what provision ought to be made from the estate.
Claimants need to have a genuine need to bring this type of action, because the court will distinguish needs from wants. Each case is determined on its own merits.
While Ivy did end up being eligible to bring her case to court, she wasn’t successful in claiming further provision because the Court considered the provision made for her in the 2017 was indeed adequate.
In Ivy’s case, the court looked at:
- Her relationship with the deceased as compared to that of the other beneficiaries;
- Her age, mental condition and unique circumstances;
- Her need for accommodation or housing, financial security; and
- a sum for contingencies, having regard to her position in life.
It was concluded that although Ivy had a blood relationship with her grandmother, it was a substantially and significantly less close relationship than the relationships the deceased had with the four other beneficiaries.
Ivy had argued she should be entitled to between 50 and 60 per cent of her grandmother’s estate because of her mental illnesses, poor financial position, and significant need for accommodation. Despite this argument, the Court of Appeal sided with the lower court judge, finding that the 20 per cent she was given (estimated at about $175,000) was enough.
Attwood Marshall Lawyers – helping people resolve estate disputes
Will disputes and Succession Law can be highly complex issues to navigate. When someone makes a family provision application, emotions are generally running high, and many family issues are bought to the surface. It is important to find the right lawyer who can guide you through this process, help you carry the burden, and reduce conflict as much as possible so that you can achieve your desired result and move on with your life.
Attwood Marshall Lawyers have a dedicated team of experienced estate litigation lawyers who practice exclusively in this complex area of law.
To find out more about how we can help with an estate dispute, please contact our Estate Litigation Department Manager Amanda Heather on free call 1800 621 071, direct line 07 5506 8245 or email aheather@attwoodmarshall.com.au . We offer a free initial appointment to determine if you have a claim in most cases.
