When a person passes away, it’s often the children who inherit their assets and belongings. But this isn’t always the case. Other parties may be able to make inheritance claims, including grandchildren. However, a grandchild must be able to demonstrate that they have an entitlement to an inheritance. If you are considering making a claim, here’s what you need to know.
How does it work?
When a person dies, their belongings become known as their “estate.” Belongings can include real property, investments, jewellery, bank accounts and debt. If the deceased person has made a valid will, an executor will have been appointed to administer the estate. This means that the executor must locate all the assets and debt, obtain a grant of probate (if required) and then distribute the estate to the beneficiaries according to the terms of the deceased’s will.
When the Supreme Court issues a grant of probate, it is an acknowledgment that the will is valid. It is also giving the executor permission to distribute the estate to the people or organisations named in the will. They are known as “beneficiaries.”
If a person believes that they should be a beneficiary, or if a beneficiary believes they are entitled to a bigger share of the estate, they have six months from grant of probate to bring a claim in the Supreme Court. This is known as an inheritance claim.
Who can apply?
South Australian law says that various relatives of the deceased can claim for provision or a greater provision from an estate. They include:
- A spouse or former spouse of the deceased.
- A domestic partner (for example, a de facto or same-sex partner) of the deceased.
- A child of the deceased.
- A parent of the deceased.
- A sibling of the deceased.
- A step-child of the deceased.
- A grandchild of the deceased.
It’s important to understand, however, that there isn’t an automatic right to a provision or greater provision from an estate simply because a person meets the eligibility criteria to bring a claim.
Education, maintenance and advancement in life
If a person (sometimes known as “the applicant”) claims for provision or greater provision from a deceased estate, there are several issues that the Court must consider, including:
- Whether the will made adequate provision for the applicant’s proper maintenance, education or advancement in life (and whether the deceased person had a duty to make adequate provision), and if this was the case;
- What provision or further provision ought to be made?
To answer these questions, the Court must look at a range of circumstances, for example:
- The size of the estate.
- The applicant’s financial position including their capacity to work or earn an income.
- The relationship between the applicant and the deceased.
- The relationship between the applicant and the other beneficiaries as well as anyone else who may make a claim, including whether there were any estranged relationships.
- The age and needs of all the beneficiaries and/or applicants.
- The applicant’s education needs, or needs for other support, for example payment of living expenses, care requirements or treatment needs.
After considering these factors, if the Court decides that there has been inadequate provision, it will decide what provision should be made to the applicant. There is no specific formula for this. It can and does vary significantly from case to case.
Grandchildren
In the case of a grandchild of a deceased person, there can be specific reasons why they may be eligible to bring a claim.
For example, let’s consider this scenario:
- A grandfather passed away.
- The grandfather had three children, but only two of his children were alive at the time of his death.
- The deceased child had a child (the grandfather’s grandchild).
- The grandfather’s will left his estate entirely to the two surviving children. There was no provision for the grandchild.
If the grandchild was young or had limited income and earning potential, they may be successful in bringing a claim for provision from the grandfather’s estate.
Also, if the grandchild had a surviving parent, the financial and family circumstances of that parent are also likely to be considered when working out what provision should be made for the applicant grandchild.
More and more of these types of claims are being made on estates.
Moral duty
It’s worth remembering that there isn’t necessarily a moral duty for a grandparent to make provision for a grandchild in their will. If the grandchild is in the care of a parent or parents, the Court will expect that the parents will meet the child’s needs. However, there may be other circumstances that create an obligation on a grandparent to provide for a child.
The example above was a case in which we acted for the grandchild. After the grandchild’s mother passed away she went to live with her father. Her circumstances became challenging due to the father’s ill health and financial hardship. At the same time, the grandchild’s needs and expenses were increasing as she progressed through her schooling and made plans to go to university. In these circumstances, it seemed only fair that the grandfather would have a moral duty to make some provision for his granddaughter.
In another example, let’s say that a grandparent pays fees for their grandchild to attend private school. There may an obligation for that arrangement to continue after the grandparent’s passing if the parents can’t afford to pay the fees themselves. The Court would look closely at this arrangement. There could be provision for school fees if the grandparent had made an ongoing commitment, for example to pay the fees for all the grandchild’s schooling rather than just for one or two years.
What next?
You may have been excluded from a will, or you may believe that your inheritance should have been larger. Or you may have a child in your care who has grounds to make an inheritance claim on their grandparent’s estate. If any of these situations apply to you, you should seek legal advice immediately.
Getting legal advice is an important step because an inheritance claim may not be straightforward.
An experienced wills and inheritance lawyer will have an excellent understanding of the law in this area. They can also give you a good idea of what you may be entitled to claim.
Lindbloms Lawyers has a highly experienced team of wills and inheritance lawyers who can help you. Give us a call today to find out more. We look forward to assisting you 8357 7611.