Are Grandchildren Eligible to Contest a Will in NSW?

Are Grandchildren Eligible to Contest a Will in NSW?

Under the Succession Act 2006 (NSW), a grandchild can only make a Family Provision Claim if they fall within the eligibility categories set out in section 57(1)(e) .

A grandchild is eligible if they can show that:

1. They were wholly or partly dependent on the deceased, and
2. The nature of the relationship created a moral duty to make provision.

Living with the deceased is not required. Household membership can strengthen a claim, but it is not essential. The key issue is whether the grandchild relied on the deceased in a meaningful way and whether the deceased owed a moral responsibility to provide for them.

What Does “Dependency” Mean?

Dependency can be financial, practical or based on day-to-day care. The grandchild must show more than a normal grandparent relationship.

Common examples of dependency include:

Financial Dependency

• Regular payments for education, tuition fees and school costs
• Financial support for medical bills, medication and treatment
• Contributions toward rent, food, utilities and clothing
• Payment of sporting, childcare or activity expenses
• Ongoing financial support during childhood or young adulthood

Practical or Day to Day Dependency

• Raising the grandchild due to parental issues such as addiction, illness or neglect
• Taking responsibility for daily routines, meals, transport or supervision
• Helping with homework, school activities or emotional development
• Providing consistent care over long periods

Parental Responsibility

Where a grandparent steps into a parental role, the Court often treats them as if they were a de-facto parent. This is the strongest form of dependency and usually results in eligibility.

Emotional closeness alone is not enough. There must be evidence that the deceased played a significant, supportive or parental role.

Grandchildren Do Not Need to Have Lived With the Deceased

Some people mistakenly believe that grandchildren must show they lived in the same household as the deceased. This is incorrect. Household membership is one of several pathways to eligibility, but it is not mandatory for grandchildren.

A grandchild who never lived with the deceased may still qualify if there is evidence that the deceased:

• supported them financially
• acted as a caregiver
• contributed to their upbringing
• provided substantial assistance
• played a significant role in their life
• had a moral duty to support them

The law recognises that care and support can occur even where the grandparent and grandchild lived in separate homes.

Why the Eligibility Test is Higher for Grandchildren

The Succession Act creates a distinction between:

• primary moral obligations owed to spouses and children

  and

• secondary or conditional obligations owed to more distant relatives

The law presumes grandparents do not automatically owe the same obligations to grandchildren, unless the facts show otherwise.

This means grandchildren must show:

• dependency
• a substantial or parental-style relationship
• a moral obligation based on the history of the relationship
• financial need, vulnerability or reliance

This threshold is higher than that for a child, spouse or de facto partner.

How the Court Decides Grandchild Claims

Once eligibility is established, the Court considers whether adequate provision was made. This assessment is based on the factors in section 60, including:

• the relationship between the grandchild and the deceased
• the grandchild’s financial circumstances
• their age, earning capacity and future needs
• any physical or mental disability
• the size of the estate
• competing claims, such as spouses or children
• the deceased’s intentions or reasons for exclusion
• any promises made by the deceased
• contributions the grandchild made to the deceased

The Court will only intervene if the deceased failed to make proper provision for someone to whom they owed a moral duty.

When Grandchildren Have Strong Cases

Some circumstances significantly strengthen a grandchild’s claim.

1. The grandparent raised the grandchild: This is the strongest scenario. When a grandparent becomes a primary caregiver, the legal system recognises them as having parental responsibilities.

2. The grandparent provided long-term financial support: Regular, ongoing contributions carry significant weight.

3. The grandchild is young, studying or financially vulnerable: Younger or financially dependent grandchildren are often the focus of moral obligations.

4. The estate is substantial: Large estates make it easier for the Court to provide for grandchildren without prejudicing closer relatives.

5. The deceased expressed an intention to support the grandchild: Such intentions can be powerful, even if not reflected in the Will.

6. The parents of the grandchild were absent, abusive or incapable: Courts accept that grandparents may step into a parental role out of necessity.

When Grandchild Claims Are Weak

Grandchildren are less likely to succeed where:

1. There was no evidence of dependency: A warm relationship is not enough.

2. The grandchild only received occasional gifts: Birthday presents or holiday money do not demonstrate dependency.

3. The grandchild is financially stable: A well established adult grandchild with no need is unlikely to receive provision.

4. There are strong competing claims: A surviving spouse, dependent child or disabled beneficiary will take priority.

5. The estate is small: Primary obligations may exhaust the estate.

6. The relationship was distant: Minimal contact or long periods of absence weaken moral claims.

Evidence Needed to Support a Grandchild’s Claim

Courts expect evidence beyond statements of emotional closeness. The most persuasive materials include:

1. Financial records: Bank transfers, receipts, or evidence of regular payments.

2. School or education records: Listing the deceased as a guardian, contact or responsible adult.

3. Centrelink or government documents: Indicating the deceased acted in a caregiving or support role.

4. Correspondence: Emails, messages or letters showing involvement, support or promises.

5. Witness statements: From teachers, neighbours, friends or relatives confirming the relationship.

6. Photographs or diaries: Showing the grandchild’s consistent presence and involvement.

7. Medical or therapy records: Where the deceased provided care during difficult periods.

A detailed affidavit backed by strong documentary evidence significantly improves the prospects of success.

How Competing Claims Affect Grandchildren

Grandchildren often face competition from:

• spouses or de facto partners
• adult children
• dependent children
• disabled beneficiaries
• long-term companions or carers

The deceased may owe a stronger moral duty to these beneficiaries. Courts must ensure proper provision is made for primary claimants before considering secondary ones like grandchildren.

However, grandchildren can still succeed where:

• the estate is large
• primary beneficiaries are financially secure
• the grandchild’s circumstances warrant assistance
• the deceased had a parental-style relationship with the grandchild

Case Examples

Example 1: Grandparent who raised the grandchild: The deceased cared for the grandchild from age 4 to 18 due to parental neglect. The deceased paid for schooling, health expenses and daily costs. This is a strong case.

Example 2: Close bond, but no dependency: The grandchild visited often and shared a warm relationship but had no financial or practical dependence on the deceased. This claim is weak.

Example 3: Financial support without cohabitation: The deceased paid for education, medical care and sporting activities but the grandchild lived elsewhere. This meets the dependency requirement.

Example 4: Small estate and competing spouse: Even with dependency, the estate may not be large enough to justify provision.

Do Grandchildren Often Succeed?

Grandchildren do succeed, but the success rate is lower than for primary beneficiaries, such as spouses and children. Courts are most likely to award provision where:

• the deceased acted in a parental role
• the grandchild was dependent
• there is financial need
• the estate is significant
• the relationship was ongoing and meaningful
• there are few competing claims

The strongest cases involve grandchildren who were raised by their grandparents.

Closing Remarks

A grandchild can make a Family Provision Claim in NSW, but they must satisfy additional eligibility requirements. Grandchildren must demonstrate dependency but do not need to show they lived with the deceased.

Once eligibility is established, the Court applies the usual Family Provision principles, considering financial need, moral duty, contributions, and competing claims.

Every case turns on its facts. Early legal advice and good evidence significantly improve outcomes.

Need Help with Your Claim?

Do you need help to contest a Will in NSW? If so, call us on (02) 8066 9990 or send us an email at mail@pbritz.com.au to obtain a free case assessment.