Following on from our article examining the right of step-children to challenge the Will of a deceased step-parent, the current family provision legislation in Western Australia allows a number of other family members to make a claim, including allowing a grandchild to challenge the Will of a deceased grandparent in limited circumstances.

Section 7(1)(d) of the Family Provision Act 1972 (WA) (the Act) allows a grandchild of the deceased to make a claim under two circumstances:

1. if the grandchild was being wholly or partly maintained by the grandparent at the time the grandparent died; or
2. if the parent of the grandchild predeceased the grandparent on the date the grandparent died.

To make a claim under section 7, section 6 of the Act must be satisfied. The Court must find that the disposition of the deceased’s estate was not such as to make adequate provision for the proper maintenance, support, education or advancement in life of the grandchild.

It is not the purpose or effect of section 7 to prioritise or “rank” claimants. If a person meets the criteria (eg the grandchild’s parent predeceased the deceased grandparent), that person has standing to bring the claim. It is the application of the evidence to section 6 of the Act which determines whether the claim succeeds.

As with claims from other family members with standing, the Court undergoes a two-stage process to determine the claim:

1. The first stage requires the Court to determine whether an applicant has been left without adequate provision out of the deceased’s estate for his or her proper maintenance, support, education or advancement in life. This is sometimes called the jurisdictional or threshold question. If the court determines that adequate provision was not made, the Court then moves onto the second step to decide what provision ought to be made out of the deceased’s estate for the applicant: Bondelmonte v Blanckensee [1989] WAR 305.
2. The second step requires the Court to exercise its discretion as to what provision (or amount) will be adequate provision for the claimant taking into account the same circumstances as were considered in the first step: Bondelmonte v Blanckensee [1989] WAR 305.

In determining whether an applicant has not received adequate provision, the Court must consider what in all the circumstances was the proper level of provision appropriate for the applicant having regard, amongst other things, to:

• the financial position of each applicant (and of the defendants);
• the size and nature of the deceased’s estate;
• the totality of the relationship between each applicant and the deceased; and
• the relationship between the deceased and other persons who have legitimate claims upon his or her bounty: Kitson v Franks [2001] WASCA 134.

The claim is therefore a comparative claim. A claim might be successful where the estate is worth $10 million, but might not be successful where, all other things being equal, the estate is worth $300,000.

In Kitson v Franks [2001] WASCA 134, Parker J provided examples of a grandchild’s claim versus an adult child’s claim. His Honour stated:

“an orphaned, young grandchild left without any substantial means of support is likely to be able to satisfy the jurisdictional test whereas an adult child established in a profession may not. On the other hand, an adult child with a mental deficiency is more likely to be able to satisfy the jurisdictional test than a healthy adult grandchild.”

Although there have not been many cases in Western Australia under the first scenario, an example of the second scenario in which grandchildren made a claim is Milne v Kendall [2010] WASC 338. In this case, 3 grandchildren sought to step into their deceased parent’s shoes to challenge their grandmother’s Will for adequate provision. Their grandmother’s surviving adult children sought to oppose the application stating that the grandchildren had been adequately provided for under the Will.

The grandmother left a sum of $10,000 to each of the grandchildren with the balance of the estate being distributed equally between the deceased’s surviving children.

At the date of the grandmother’s death, all three grandchildren remained single and did not receive substantial income from employment. The Court found that the first and third plaintiffs did not have a strong relationship with their grandmother; however, the second plaintiff did care for her grandmother as she lived close to her grandmother. In making its decision, the Court took into account the respective circumstances of the plaintiffs, plus the size of the estate and the relationships of all parties with the deceased.

Firstly, the Court held that the children had a greater claim to the deceased’s estate than the grandchildren partly due to their closeness to the deceased. Secondly, the grandchildren had already each received a substantial inheritance from their mother’s estate and, thirdly, the deceased’s children had financial needs of their own. It is important to understand that, for the purposes of determining the grandchildren’s claim, the Court did not treat the grandchildren the same way as the Court would have treated a claim from their deceased parent. The grandchildren did not step into their deceased parent’s shoes in that way. The grandchildren had to stand on their own respective feet to demonstrate on the evidence that their own respective claims had merit.

The Court increased provision to the grandchildren slightly; however, the balance of the estate was still distributed equally to the deceased’s children.

If you would like advice on contesting a Will, please contact Kimi Shah on 08 6166 9000 or by email kimi@ryandurey.com.