The Facts

Grandmother dies without seeing granddaughter in 15 years

A woman became a grandmother when her only child, a daughter, gave birth to a girl in 1995.

Sadly, the woman's daughter committed suicide in 1996 when the granddaughter was just 18 months old.

The granddaughter then lived with her father at various locations in the Brisbane area and in regional parts of NSW.

She visited her grandmother between 2000 and 2003.

However, from 2003 until the grandmother's death in September 2017, the grandmother and granddaughter did not see each other again.

Grandmother's new will reduces granddaughter's share of estate

In 2009 the grandmother had made a will granting small gifts to some of her friends and making her granddaughter her primary beneficiary.

In April 2017, the grandmother visited the solicitor who had drafted her 2009 will and told him that she wished to change her will.

He prepared a new will, which the grandmother signed later that same day.

In this will, the grandmother left just twenty per cent of her estate to her granddaughter and split the remainder equally between four friends.

There was no dispute that the grandmother enjoyed a close and long-standing relationship with these friends.

Grandmother dies and granddaughter challenges will

On 8 September 2017, at the age of eighty-seven, the grandmother died.

She left behind an estate worth about $920,000.

The granddaughter, who was not happy that she would receive less under the 2017 will than under the 2009 will, challenged the 2017 will.

She argued that the 2017 will was invalid due to her grandmother's incapacity at the time of signing that will.

This claim was rejected by the court.

However, she also argued that irrespective of the terms of the 2017 will, she was entitled to a family provision order granting her the whole of her grandmother's estate.

To succeed, the granddaughter had to establish, among other things, that she was wholly or partially dependent on her grandmother.

case a - The case for the granddaughter

case b - The case for the estate

  • I am entitled to a family provision order amounting to the whole of my grandmother's estate.
  • My mother was my grandmother's only child and I am my grandmother's only grandchild. After my mother's death, whenever my grandmother and I spent time together, she treated me as if I was her daughter. She was the closest thing to a mother figure to me.
  • My grandmother used to say to me: "One day all of this will be yours. With your mother gone, you are all I have." She even made me the primary beneficiary of her 2009 will.
  • I was also partially dependent on my grandmother at various times in her lifetime.
  • In 2001, when my father caught chicken pox, my grandmother came to Brisbane from Sydney to take care of me.
  • Between 2000 and 2003 I travelled to Sydney on three or four occasions to stay with my grandmother for a month at a time. My grandmother would look after me and we would garden, play music, go to the park, cook together and go to the shops. My grandmother also bought me a pet rabbit and several goldfish.
  • I wasn't able to see my grandmother after 2003 because she and my father weren't speaking then and my father forbade me from seeing her.
  • However, my grandmother and I still maintained a close relationship through letters, cards at Christmas and Easter, and regularly speaking on the telephone about once every second month.
  • My grandmother also sent me regular food packages with biscuits, cakes and clothing three to four times a year. She also sent money orders, usually of $300, about three to four times a year.
  • As a grandchild who was like a daughter to my grandmother and partially dependent on her, I am eligible to make a family provision claim against my grandmother's estate. The court should recognise this.
  • The granddaughter is not eligible to make a claim against her grandmother's estate because she was never at any time even partly dependent on her grandmother.
  • Infrequent and short stays with her grandmother do not make her dependent in the ordinary sense of the word. Even if she was dependent, she was merely minimally dependent, not "partly dependent" as required by law in order to challenge the estate.
  • The granddaughter claims that she and her grandmother sent letters and cards back and forth and spoke on the phone. However, no evidence of this was produced.
  • Similarly, no evidence was produced regarding food packages and money orders being sent to the granddaughter by her grandmother.
  • The granddaughter says that she couldn't see her grandmother because her father forbade her from doing so. However, even if her father's influence was significant, there were still years when she was an adult and could have contacted her grandmother. She didn't do so.
  • Since the granddaughter was not even partially dependent on her grandmother, she is not eligible to make a claim against her grandmother's estate. Her case should be dismissed.

So, which case won?

Cast your judgment below to find out

Joshua Crowther
Will disputes
Stacks Law Firm

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.