The last 30 years have seen a significant shift in the role of grandparents. In the past, many grandparents were avid spectators, whereas today, more grandparents have an active role in their grandchildren’s lives.[1]
The Australian Courts are grappling with the legal issues raised by the shift in the role of a grandparent. Here we look at whether a grandchild can bring a claim in respect of their grandparent’s estate.
Family Provision Claims
A family provision claim refers to an application to the Supreme Court for a share (or larger share) from the estate of a deceased person. To make such an application, one must first establish that they are an ‘eligible person‘ under section 57 of the Succession Act (NSW) 2006 (“the Act“) A grandchild may be an eligible person- but it is not automatic or clear cut.
In order to be eligible, a grandchild must have also been,at any particular time, wholly or partly dependent on the deceased.
But what does wholly or partly dependent mean where, in the current context, 71.4% of couple families with dependants have both parents employed, and often grandparents have taken more responsibility in the upbringing of their grandchildren[2]. Could wholly or partly dependant include anything from living with the grandparent full time to the grandparent providing regular after-school care, regular sleeping accommodation and/or taking grandchildren to sporting events and activities on a regular basis?
A family provision application was made (amongst other applications) by a grandchild in the Court of Appeal matter Chisak v Presot [2022] NSWCA 100.
Summary of Facts:
Ivy Chisak (“Ivy“) was the granddaughter of Lily Savransky (“the deceased“). Ivy’s mother was the deceased’s only child and died when Ivy was an infant. Ivy was raised by her father. Ivy stayed with the deceased on two to four occasions for periods of a few weeks to a month at a time between 2000 and 2003. Ivy’s last contact with her grandmother was when she was eight years old.
The deceased executed a will in 2009, leaving her four friends legacies of $5,000 to $7,500 each, with the residue estate to Ivy. The deceased revoked the 2009 will and executed a new will in 2017, leaving the entire estate to her four friends and Ivy in equal shares as tenants in common.
The deceased died on 8 September 2017. Ivy initiated proceedings in the Supreme Court of NSW to challenge the validity of the 2017 will on the basis that the deceased lacked testamentary capacity to execute the 2017 will. In the event that this application failed, Ivy sought a family provision order on the grounds that she was an ‘eligible person’ and that adequate provision had not been made for her under the 2017 will.
At first instance, the matter was heard by Hallen J, who held that:
- The deceased did not lack testamentary capacity to execute the 2017 will;
- Ivy is not eligible within the meaning of section 57(1)(e) of the Act, i.e., Ivy was not partly nor wholly dependent on the deceased. This was due to the fact that Ivy’s father held full parental responsibility, and a few gifts and visits with the deceased were insufficient in establishing partial dependency
- Even if Ivy was eligible to make a family provision claim, adequate provision had already been provided for her under the 2017 will.
Ivy appealed this decision with the NSW Court of Appeal Ivy’s challenge to the validity of the 2017 will, on the basis that the deceased lacked testamentary capacity, failed again with the Court of Appeal. However, the Court of Appeal did find that Ivy had established she was an ‘eligible person’ to make a family provision claim out of her late grandmother’s estate.
Eligible Person under Succession Act
In deciding whether a grandchild was an eligible person, the Court of Appeal assessed whether Ivy was, for any particular time, wholly or partly dependent on her grandmother. The Court of Appeal found that the question of dependency is not to be conflated with whether a grandparent assumed responsibility for the grandchild’s maintenance, education, or advancement in life but whether the grandchild was wholly or partly dependent on their grandparent at any particular time [44].
The Court of Appeal found that Ivy was partly dependent upon her grandmother during the few visits she made to her grandmother when she was a young girl (about five years old). While these visits were few in quantity, the duration of these visits was three to four weeks at a time. During these visits, it is inferred that the deceased held parental responsibility, notwithstanding Ivy’s overarching dependency on her father.
While Ivy was considered as an ‘eligible person’, the Court of Appeal agreed with the primary judge that the deceased had adequately provided for Ivy under the 2017 will.
Implications
As there is no definition of “dependent on” in the Act, cases such as Chisak v Presot [2022] NSWCA 100 are important in understanding and advising clients as to whether a grandchild is eligible to make a claim against their grandparent’s estate. This case highlights that partial dependency of a grandchild on their grandparent does not need to be significant but rather “more than minimal” to establish that a grandchild is an eligible person to make a family provision claim.
[1] https://aifs.gov.au/sites/default/files/publication-documents/b2_0.pdf
[2] https://www.abs.gov.au/statistics/labour/employment-and-unemployment/labour-force-status-families/latest-release
