Can grandchildren make a claim on a grandparent’s Estate?
We know that spouses and children are eligible applicants to make a claim on a deceased Estate, but what about grandchildren?
Prior to 2015 a small number of claims were made by grandchildren, but they were largely unsuccessful. The legislation changed in 2015, making it even harder for grandchildren to make claims; however, it is still possible.
The law in Victoria provides that a grandchild is eligible to make a claim on a grandparent’s Estate via a “Testator Family Maintenance” claim (“TFM claim”) providing they are “wholly or partly dependent on the deceased for their proper maintenance and support” (section 91(2) Administration of Probate Act 1958 (Vic)).
A Victorian Supreme Court case, Veniou v Equity Trustees Limited [2018] VSC 832, provides insight into how courts consider TFM claims by grandchildren, and explores the requirement of “dependency”.
Facts of Veniou v Equity Trustees Limited
The deceased died leaving an asset pool of around $2 million.
The deceased had 3 children, although 1 had already died.
The deceased’s 39 year old grandchild made a claim on the Estate.
The grandchild’s mother had died in 1995 when the grandchild was 16.
The grandchild sought 1/3 of the Estate, the amount that her mother would have received had she been alive
The Will left the residue of the Estate to the deceased’s 2 surviving children. Previous Wills had left provision for the grandchild, but not the final Will.
Growing up the grandchild lived with her parents and brother in Greece. The grandmother visited them in Greece often, and they all shared a close relationship while the mother was alive.
The grandchild travelled back to Melbourne with her mother when her mother was ill with leukemia and required a bone marrow transplant. The mother died during this trip. The grandchild resided with her grandmother for around 1.5 months.
Shortly after her mother’s death, the deceased gave the plaintiff a card from Equity Trustees (the Executor appointed under the deceased’s Will), recommending she get in touch with Equity Trustees if she had any needs after her grandmother’s death.
After her mother died, the relationship between the grandchild and the deceased deteriorated. The grandchild last saw the deceased in 1995 (22 years before the deceased’s death) although letter writing and phone calls continued until around 2004.
The grandchild claimed that the deceased had made representations that she would be taken care of in her Will, and the grandchild understood, from discussions within the family, that she would receive her late mother’s share of the Estate.
The grandchild is in a poor financial situation, is single, and has some health issues.
Judgement
The Grandchild’s application was unsuccessful, the judge found that the plaintiff had no real prospects of success in establishing she had been “wholly or partly dependent” on her grandmother for her proper maintenance and support, as required under the legislation.
In clarifying the meaning of “dependence”, the Court concluded that “…dependence…means actual receipt of material aid…not a mere promise of some undefined financial aid in the future.”
The representations made by the deceased during her lifetime to the plaintiff were not enough to constitute dependence. Emotional support is also not enough.
This case confirms that grandchildren can make claims on grandparents’ Estates; however, they must first prove financial dependency on the deceased, which can be challenging. Importantly, although the dependency on the deceased can occur at any point prior to the deceased’s death, any provision awarded to a grandchild must be proportionate to the level of dependency on the deceased at the date of death.
Each TFM matter is unique, therefore it is important to seek legal advice to explore:
firstly, whether you are eligible to make a claim on an Estate;
secondly, whether the deceased had an obligation to provide for you; and
thirdly, whether the Will fails to provide adequate and proper provision for you.
If you think you might be eligible to make a claim on an Estate or would like to discuss your situation further, you can call Madeleine Debono on 03 5445 1063.