Lesley McDonnellA grandfather testator made a Will in which he left his estate to his only daughter (the defendant). The plaintiffs were the only grandsons of the testator, who owned, controlled and operated considerable pastoral holdings near Walgett. The plaintiffs commenced court proceedings against their mother as the executor of their grandfather’s estate, claiming that they were entitled to the entirety of their grandfather’s property, to the exclusion of their mother. Affronted by their conduct, the defendant made the decision to leave her sons out of her own Will. The result would have been, absent a court order or a change of heart by the mother, the plaintiffs would never receive the inheritance they long aspired to receive. It was left to a Court to determine the outcome of the family provision claim made by the plaintiffs against their grandfather’s Will.

Within the family group, the plaintiffs and their parents were all partly dependent upon the testator. He acted as a father figure to the plaintiffs, especially after their parents separated in 1992. He paid for the grandsons’ education. He provided the grandsons with paid work and accommodation on his properties. He shaped and directed their lives after school and to a considerable extent, groomed them for what he expected would be their eventual inheritance. “In the case of both young men, he encouraged them in the expectation that they would inherit the properties. In the circumstances in which they were brought up, the plaintiffs understandably developed an unhealthy sense of entitlement. But there were no promises and there was no agreement”.

The testator made Wills in 1987 and 2002. In both Wills, the testator left his estate to the defendant and provided for the properties to go to the plaintiffs only if his daughter pre-deceased him. The testator “never intended to leave the properties directly to them [the grandsons] while ever his daughter was alive and well, living on the properties and operating them”.

“It should be understood that the position under our law is that grandchildren have no claim as of right to the beneficence of grandparents…Nor should it be assumed that generosity by a grandparent to a grandchild, including by the payment of school fees, automatically converts the relationship into one of obligation to provide for the grandchild on the death of the grandparent”.

In order to make a family provision claim, a grandchild must be a person “who was, at any particular time, wholly or partly dependent on the deceased”. It is not enough for a grandchild to simply put their hand up for a greater share in an estate. Additionally, grandchildren must be able to demonstrate to a Court that “having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application”.

When determining an application for family provision, the Court noted it is appropriate to have regard to “perceived prevailing community standards of what is right and appropriate. This may be an imprecise, variable and contestable standard”.

Ultimately the family provision claim was not successful as the Court formed the view that the factors relied upon by the plaintiffs did not warrant the making of the family provision claim.

In family provision claims, there are principles that emerge from the cases which take into account prevailing community standards of what is right and appropriate but ultimately each case depends on its own facts. At Everingham Solomons, we have the expertise to assist you with all matters relating to deceased estates, estate planning and Family Provision claims, because Helping You is Our Business.

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