Can my grandchildren make a claim on my estate?

* the comments in this article are specific to Queensland

 From time to time, we are asked whether various extended family members can make a claim on a person’s estate.  This might be particularly the case where there is a large estate and no close living relatives.  In those cases, siblings (brothers and sisters) or grandchildren might wish to see whether they have an entitlement. 

If the person has died without a Will, and has no spouse or children surviving them:

  • If they had one or more grandchild, then the grandchildren will receive the share that their parent would have received had he or she survived;
  • If there are no grandchildren but the deceased is survived by one or more parents, then the surviving parent or parents are entitled to the estate;
  • If there are no parents, then brothers and sisters are entitled to the estate, and if any died before the deceased but had children, their children (ie the nephews and nieces of the deceased) are entitled;
  • There are further entitlements of more remove next of kin (eg grandparents, uncles and aunts) under section 37 of the Succession Act 1981.

So that was the case where the person has died without a Will, but what about if the person died with a Will and left their estate (say) to friends or to a charity?

In that case, and assuming that the person had proper mental capacity to make the Will (or the person died without a Will and the claimant is not entitled under the order of distribution above), the claim will generally be made under the “family provision” sections of the Succession Act.  This is addressed elsewhere on this site.

Relevantly however, the only people who can make a claim under these provisions are:

  • A spouse;
  • A child; or
  • A dependant.

Section 40 defines “Child” as including a child, step child or adopted child of the person.  It goes on to define “Dependant” as meaning a person who “was being wholly or substantially maintained or supported (otherwise than for full valuable consideration) by the deceased person at the time of the person’s death being:

  • A parent of that deceased person; or
  • The parent of a surviving child under the age of 18 years of that deceased person; or
  • A person under the age of 18 years

So as you will see, the range of eligible claimants is quite restricted, being restricted to spouses, children, and people who are being maintained or supported by the deceased person. 

It is possible that family members such as grandchildren might fall within a class of “dependant” however there would need to be a sufficient degree of maintenance and support before that could occur.  That is similarly the case for brothers and sisters or any other extended family member. 

For advice on Wills and Estates, please contact Peter Muller at peterm@qbmlaw.com.au or Jessica Murray at jessicam@qbmlaw.com.au