Case Study: Does a grandparent have a duty to provide for their grandchild under their Will?
The Supreme Court of Victoria recently released its judgment of Veniou v Equity Trustees Limited [2018] VSC 832. Russell Kennedy acted for Equity Trustees in successfully obtaining summary judgment and defending the application made by a grandchild who made a claim for provision against her grandmother’s estate. The claim was dismissed on the basis that she was not considered to be an eligible person because she could not satisfy the dependency requirement.
This was the first case considering the meaning of ‘dependence’ when determining the eligibility of a grandchild to make a claim for further provision against an estate pursuant to Part IV of the Administration and Probate Act 1958 (Vic) (“the Act”).
Facts:
- The deceased was the maternal grandmother to the grandchild, whose mother had died in 1995
- The grandchild made an application to the Court seeking one third of the estate ie an amount equivalent to what would have been her mother’s equal share of the estate
- When the grandchild was 14 years old she travelled with her mother from Greece to Australia for her mother’s cancer treatment. She claimed that after her mother died she stayed with her grandmother in Australia for a month and her grandmother gave her a card from Equity Trustees and told her that if she was ever in need to contact them. She also claimed that her grandmother told her when giving her the card that she should get in touch with Equity Trustees if she had any needs in the future with regard to her estate. The grandchild argued that she understood from that conversation that her grandmother would provide for her upon her death
- The grandchild did not see her grandmother from 1995
Legal Principles
Claims by grandchildren
Grandchildren are considered to be within the class of eligible people under the Act who can make a claim for further provision from an estate, so long as they establish that they were wholly or partly dependent on the deceased for their proper maintenance and support.
An eligible person must also establish that at the time of death the deceased had a moral duty to provide for their proper maintenance and support and that the distribution of the estate fails to do so.
These conditions must be satisfied in order to enliven the Court’s jurisdiction.
When considering a claim by a grandchild the Court must take into account:
- the degree to which the eligible person is not capable by reasonable means of providing adequately for their proper maintenance and support; and
- the degree to which the grandchild was wholly or partly dependent on the deceased for their proper maintenance and support.
If the Court makes such an order, the amount of provision must be proportionate to the grandchild’s degree of dependence on the deceased for proper maintenance and support at the time of the deceased’s death.
Application
The Court considered that ‘dependence’ requires actual receipt of material aid and the dependence must be prior to the deceased’s date of death. Therefore, representations made by the deceased when she gave her granddaughter the business card of Equity Trustees did not constitute dependence. The granddaughter was not receiving any material aid from her grandmother at her date of death or before and as such, was not dependent on her grandmother for her proper maintenance and support.
Conclusion
The key take-home from this case is that in order for grandchildren to be considered eligible to make a claim for further provision, they must establish:
- Dependence; and
- Such dependence to consist of material aid before the deceased’s death and not merely representations of future assistance after the deceased’s death.
In New South Wales, grandchildren are also considered to be eligible claimants to make a claim for provision against a grandparent’s estate so long as they can demonstrate that they were wholly or partly dependent on the grandparent. In New South Wales dependency is not limited to only financial aid and also includes relying on the deceased for maintenance and support.
If you have any concerns about whether you owe an obligation to your grandchildren or any other family member in your Will, please feel free to contact Ilana Kacev (Vic) or Andrew Aitken (NSW) for further advice.
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