Can grandchildren and stepchildren pursue family provision claims?

Published 05 Mar 2015

Author: David Cossalter

Not everyone can launch a family provision claim; NSW legislation states that you must be considered an eligible person if you'd like to challenge a will.

Under the Family Provisions Act 1982, this includes spouses, de-facto partners, life partners, children and former wives or husbands. However, when it comes to grandchildren and stepchildren, it becomes a little more complicated.

If your grandparent or stepparent has died, you do not necessarily have the right to pursue a family provision claim through the courts. This is because grandchildren and stepchildren are not automatically considered eligible persons.

Nevertheless, you may have options. The Act makes allowances for individuals who can prove they were wholly or partially dependent on the deceased at any given time before they died.

In addition, stepchildren must also show they were a part of the testator's household - either at the time of their death or before. On the other hand, a grandchild may only have to establish they lived with the deceased. 

These conditions apply to a range of other types of claimant, such as nephews, nieces and friends, among others.

How is dependency established?

One of the primary ways the courts gauge the level of the plaintiff's dependency is by examining how much financial support they received from the deceased.

This may include payments for education, providing accommodation or regularly purchasing clothing and other essentials. Your emotional dependency could also be taken into account.

Should the courts decide you are eligible, the success of your inheritance dispute and any subsequent redistribution of assets could be influenced by various factors. Among the issues commonly considered are:

  • The estate's value
  • Your financial circumstances
  • The financial stability of other beneficiaries
  • Your age
  • The strength of your relationship with the deceased

To ensure you have the best legal representation in court, get in touch with a contesting wills lawyer who can help gather the appropriate evidence on your behalf and fight your corner.

Experienced lawyers have dealt with hundreds of cases similar to yours, increasing your chances of coming away with a decision with which you are satisfied. 

Furthermore, hiring a no-win, no-fee firm protects you from incurring ongoing legal expenses, which can prove costly if your claim is unsuccessful. This should give you the financial peace of mind you need to launch a family provision ACT claim.

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