Family Provision Orders for Grandchildren

Chapple v Wilcox [2014] NSWCA 392 (18 November 2014)

This is a case which severely impacts upon the ability of grandchildren to succeed in bringing claims for family provision orders.

The deceased left his entire estate in his will to his daughter, Patricia Wilcox – the estate consisted primarily of a large grazing property and pastoral business.

Patricia’s son, Robert (43), the deceased’s grandchild, brought a claim for a family provision order requiring that the pastoral properties be transferred to him. The deceased had been Robert’s mentor as he grew up, and as a generous grandfather he had paid for Robert to be educated away from the farm at an expensive boarding school in Sydney. While Robert had worked on the farm in his early years, he had left the farm permanently in 1993 and had had only infrequent contact with his grandfather from that time. Robert was unemployed and had “virtually no assets” and had chosen to work as a tree lopper with minimal financial gain as he waited for his inheritance.

When the case first came to court the trial judge ruled that Robert had been partly dependent on the deceased, and because he was “penurious” and had not made a success out of his life he would be expected by community standards to be the object of his grandfather’s will. The judge determined that Robert was entitled to $387,000 from the estate in order to provide for his advancement in life.

On appeal the Court of Appeal overturned the trial judge’s decision and substantially restricted the capacity of grandchildren generally to make family provision claims.

Grandchildren have no claim as of right to expect grandparents to provide for them and, as a general rule, grandparents have no responsibility to make provision for a grandchild.

This is in spite of s 57(1)(e) of the Succession Act which provides that a grandchild who was, at any time, wholly or partly dependent on the deceased is an eligible person who may make application for a family provision order.

In considering the appeal, the Court of Appeal cited the ruling of the three judges in Andrew v Andrew [2012] NSWCA 308 which emphasised the central role played by “community standards” or “community expectations” in any decision which concerns whether a Court should override the deceased’s expressed wishes.

The Court of Appeal confirmed the general principles outlined by Hallen JA in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275for claims by grandchildren, which the Court of Appeal used to make its decision:

“(a) As a general rule, a grandparent does not have a responsibility to make provision for a grandchild; that obligation rests on the parent of the grandchild. Nor is a grandchild, normally, regarded as a natural object of the deceased’s testamentary recognition.

(b) Where a grandchild has lost his, or her, parents at an early age, or when he, or she, has been taken in by the grandparent in circumstances where the grandparent becomes in loco parentis, these factors would, prima facie, give rise to a claim by a grandchild to be provided for out of the estate of the deceased grandparent. The fact that the grandchild resided with one, or more, of his, or her, grandparents is a significant factor. Even then, it should be demonstrated that the deceased had come to assume, for some significant time in the grandchild’s life, a position more akin to that of a parent than a grandparent, with direct responsibility for the grandchild’s support and welfare, or else that the deceased has undertaken a continuing and substantial responsibility to support the applicant grandchild financially or emotionally.

(c) The mere fact of a family relationship between grandparent and grandchild does not, of itself, establish any obligation to provide for the grandchild upon the death of the grandparent. A moral obligation may be created in a particular case by reason, for example, of the care and affection provided by a grandchild to his, or her, grandparent.

(d) Generosity by the grandparent to the grandchild, including contribution to the education of the child, does not convert the grandparental relationship into one of obligation to provide for the grandchild upon the death of the grandparent. It has been said that a pattern of significant generosity by a grandparent, including contributions to education, does not convert the grandparental relationship into one of obligation to the recipients, as distinct from one of voluntary support, generosity and indulgence.

(e) The fact that the deceased occasionally, or even frequently, made gifts to, or for, the benefit of the grandchild does not, in itself, make the grandchild wholly, or partially, dependent on the deceased for the purposes of the Act.

(f) It is relevant to consider what inheritance, or financial support, a grandchild might fairly expect from his, or her, parents.”

As an ordinary grandparent-grandchild family relationship, the Court of Appeal found that Robert was not entitled to special treatment.

In particular, the relationship between Robert and the deceased had never been a parent-like relationship – Robert had never been an orphan or forced to live away from his parents, and in fact he lived with both of his parents until they separated in 1993.

Also, while Robert certainly viewed the deceased as a mentor and authority figure (as do many grandchildren), the ordinary characteristics of a grandparent-grandchild family relationship do not create any expectation of inheritance or constitute “special care or affection”.

This means that the deceased’s generosity and gifts to Robert did not create an expectation that Robert would inherit from his estate.

It also means that financial assistance towards Robert’s education (even towards an expensive private school) does not indicate anything beyond ordinary financial assistance in meeting family expenses.

Robert had also only had infrequent contact with the deceased during his old age, and had not cared for him during his old age. If Robert had been a dutiful grandson and had shown special care for his grandfather then this may have created a moral obligation in line with “community standards” for the deceased to provide for Robert in his will.

The Court found that Robert’s lack of assets were not relevant to his claim. The mere fact he had received some support from his grandfather in the past did not create any obligation

The Court could find no reason on the facts why community standards should compel the Court to intervene against the express will of the deceased to leave the entirety of his estate to Patricia and for her to use her judgment in any further disposition of the property.

The Court of Appeal has, therefore, imposed very strict rules for grandchildren wanting to bring family provision claims.

It should be noted that as a result of Robert’s claim Patricia removed him from her will. She died before the hearing of the appeal. The inference can only be that if Robert had not initiated this claim he would have stood to claim his inheritance.

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