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When can a Grandchild make a claim on their Grandparents deceased estate?

Author: Graeme Heckenberg from Heckenberg Associates Solicitors

The Family Provision Act provides legal remedies for people to claim against deceased estates in situations where they feel they have not received their inheritance or been properly provided for by the deceased.  The law courts regularly have to determine claims by children against the Executors of deceased estates where it is stated their parents did not make adequate provision for them in their Wills or they were left out of the Will altogether.

To make a claim a person has to be establish they are an “eligible person” under the Act.  Husbands, wives and children are automatically eligible persons.

Grandchildren can also be eligible persons and therefore have legal standing to bring a claim in certain circumstances.  The Act requires that the grandchild to establish that at any particular time in their life they were wholly or partly dependent upon their grandparent. The general principles are;

• A grandchild is not normally regarded as someone the will maker ought naturally to have concern for.  Additional factors need to be shown to bring a grandchild into this category.
• These factors include evidence that the deceased had come to assume for some significant time in the grandchild’s life a position more like a parent than grandparent with direct responsibility for the grandchild’s support and welfare.
• The courts have held that where the deceased has undertaken a continuing and substantial responsibility to support the grandchild financially this satisfies the legal test and the grandchild has been able to bring their claim.
• The Courts have determined that dependence means direct and immediate  support to the grandchild
• Incidental support or frequent gifts does not of itself satisfy the test of dependence to qualify the pattern of gifts or benefits must establish that the grandparent had assumed a continuing and substantial responsibility for the grandchild support and welfare.
  

Each case is determined on its own facts and before any award can be made by the Court the claimant has to establish that they need to have provision made for them.

Applying these principles the Courts have granted an application by grandchildren who were primarily cared for by their grandmother in early childhood and adolescence even after the home of the deceased was sold and the proceeds distributed.

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