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  7. Can a Grandchild make a Family Provision Act Claim?  
21 Apr 2022

Managing Associate, Alyce Martin, and Lawyer, Danielle Barker, in our Wills, Estates, and Succession Planning team outline if a grandchild can make a Family Provision Act claim.

What is a Family Provision Act Claim?  

In Western Australia, the Family Provision Act 1972 (WA) (‘The Act’) allows eligible persons to claim against a deceased’s estate if they can demonstrate to the Court that the estate does not make adequate provision for their proper maintenance, support, education, or advancement in life.  

Is a Grandchild an Eligible Person?  

Under section 7(1)(d) of the Act, a grandchild of a deceased is eligible to make a Family Provision Act Claim if: 

  • They were wholly or partly maintained by the deceased immediately before the deceased’s death;   
  • They were living at the date of the deceased’s death, and one of their parents was a child of the deceased who had predeceased the deceased; or  
  • They were born within 10 months after the date of the deceased’s death, and one of their parents was a child of the deceased who had predeceased the deceased.  

What does the Court consider?  

To determine whether a deceased’s estate has made adequate provision for a grandchild, the Court will consider: 

  • The grandchild’s financial position;  
  • The size and nature of the deceased’s estate;  
  • The relationship between the grandchild and the deceased; and  
  • The relationship between other eligible persons and the deceased.  

If the Court determines that the estate has not made adequate provision for a grandchild, the Court will use its discretion to decide what provision should have been made from the estate for the grandchild.  

Milne v Kendall [2010] WASC 338 

The three plaintiffs, Judith Milne, Caroline Milne, and Kenneth Milne were the adult grandchildren of Constance Collins who died on 18 April 2008 (the Deceased).  

The plaintiffs’ mother, who was the daughter of the Deceased, had predeceased Mrs Collins.  

The net value of the Deceased’s estate was $971,862.19. In the Deceased’s Will, she gifted the sum of $10,000 to each of Judith, Caroline, and Kenneth, and left the residue of her estate to be divided equally between her three surviving children.  

The plaintiffs sought orders that adequate provision be made for them from the Deceased’s estate.  

The Court considered the plaintiffs’ financial position, the size and nature of the Deceased’s estate, the relationship between the plaintiffs and the Deceased, and the relationship between the Deceased’s children and the Deceased.  

The Court found the Deceased’s children had significantly greater claims on the estate than the plaintiffs due to their own financial needs, the closeness of their relationship to the Deceased, and the substantial inheritance that the plaintiffs received from their mother.  

However, the Court ordered that Julie and Caroline receive the sum of $50,000 each, and Kenneth receive the sum of $25,000 in substitution for the provision made in the Will. The Court reasoned that this provision would allow Julie and Caroline to own their homes to provide accommodation to themselves and their daughters. Lesser provision was made for Kenneth as a single person without any competing responsibilities.  

So, should you provide for a Grandchild in your Will?  

Section 27 of the Wills Act 1970 (WA) provides a statutory substitution for any gift to a child of yours If they predecease you.  This clause provides that unless there is an express direction otherwise, if you have provided for your child in your Will, and that child predeceases you, leaving child or children of their own (i.e., your grandchildren), the share that would have otherwise been received by your child will be divided between your grandchildren. 

Although this statutory substitution clause exists, we recommend that people are clear and specific about who they want to inherit from their estate by naming them and the extent or share of the estate that they are to receive. 

There is normally no obligation for a grandparent to provide for a grandchild due to the remoteness of the relationship between a grandparent and a grandchild, as compared to a parent and a child.  

However, the Act does provide that in certain circumstances a grandchild can make a claim on a grandparent’s estate.  If you have a grandchild that you have been wholly or partly maintaining or if their parent has predeceased you, then your estate could be at risk from a claim being made by that grandchild if adequate provision for their proper maintenance, support, education, or advancement in life is not considered or made.  

How HHG Legal Group can Assist  

HHG Legal Group has been proudly serving Western Australian families, businesses, governments, and individuals for over 100 years. Our Wills and Estates team is one of the largest and most highly regarded in the state and can provide proactive legal advice to address any concerns you may have in relation to providing for grandchildren.  

 

*This is general information only, and does not constitute specific legal advice. Please consult one of our experienced Legal Team for specific advice relevant to your situation.

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