Grandchildren and family provision claims: a hard lesson from Broadus v Cradduck

When a person dies and leaves a will, family members who were left out sometimes feel hurt or confused. In New South Wales, certain people, including grandchildren, can make a claim for provision under the Succession Act 2006 (NSW) (“Act”). The Supreme Court’s recent decision in Broadus v Cradduck [2025] NSWSC 402 is a sobering example of some of the challenges faced by adult grandchildren when seeking a share of their grandparent’s estate. In this case, the Court dismissed a claim brought by an adult grandson, finding that he was not “dependent” on the deceased, and that the deceased owed no obligation to make provision for the grandson. This article explains the facts of the case, the legal issues involved, and why the Court ultimately decided that the grandson was not entitled to any provision.

Background: a grandfather’s careful and considered will

Walter Cradduck, the deceased, died in October 2022 at age 86. His will left his entire estate, valued at around $1 million, to his surviving son Peter, who had lived with him for decades and helped care for him. Peter had recently married and was raising a family on the same property, having co-funded the construction of a granny flat behind the family home with Walter.

Walter’s will made Peter the sole beneficiary. He only provided for his grandchildren (including the plaintiff) as fallback (substitute) beneficiaries if Peter died first. As the judge noted, this was a "deliberate recalibration of his testamentary arrangements" reflecting changes in Walter’s life, including the death of his older son Michael (the plaintiff’s father) and Peter’s new family situation.

The plaintiff was one of Walter’s grandsons. He made a family provision claim arguing that Walter should have made provision for him in the will. His initial “ambit” claim of up to $911,318.86 was ultimately moderated to a final request for provision amounting to $115,000 plus costs. Lindsay J noted at [16] that the record told “…a story of opportunistic, cascading ambit claims, falling away under challenge, without realistic articulation of needs reasonably able to be addressed or a plan for management of provision, if made.”

The legal hurdles: why the claim failed

The Court found that the plaintiff’s case failed at the first step. He was not an "eligible person" under the Act. Even if he had been, the judge made clear that his claim would still have failed. The Court provided detailed reasons for rejecting each part of the plaintiff’s claim.

1. Jurisdictional gateway: no dependency, no eligibility

The key legal hurdle in this case was whether the plaintiff was an “eligible person” under the Act. In order for a grandchild to qualify, the Act requires that he or she must have been “wholly or partly dependent” on the deceased at a particular time (s 57(1)(e)).

On the meaning of ‘dependency’, Lindsay J repeated the observations of Hallen AsJ in Bowditch v NSW Trustee and Guardian [2012] NSWSC 265:

“[52]…the word ‘dependent’ connotes a person who relies upon support of another, financial and/or emotional… the words are wide enough to cover any person who would naturally rely upon, or look to, the deceased… for anything necessary, or desirable, for his, or her, maintenance and support.”

The Court observed that emotional dependence alone is insufficient.

The plaintiff claimed to have been financially and emotionally dependent on his grandfather for more than a decade. He said he had lived in Walter’s home, that he helped around the house, and that Walter had given him financial assistance, including gifts of thousands of dollars to buy cars (see [107]). He described living in the deceased’s spare room – “Nan’s old sewing room” – and sought to establish dependency by arguing that he was a member of the deceased’s household.

Lindsay J recognised that while household membership can support a finding of dependency, it is not enough on its own. His Honour was not satisfied that the plaintiff was a member of the deceased’s household, finding (at [22]) that “…he was, in truth, essentially a guest sleeping in a spare room from time to time, without any form of stipend from the deceased.”

Ultimately, the plaintiff failed to establish that he was “wholly or partly dependent on the deceased” for the purposes of the statutory threshold of eligibility:

“[108] … That the deceased provided financial assistance to the plaintiff from time to time on a casual basis may be accepted, but that can be accounted for simply on the basis that the plaintiff was a grandson without a finding of “dependency”. The plaintiff’s transient life, and the relationships he maintained outside any relationship with the deceased, point away from any dependence upon the deceased.

[109] The plaintiff was never “wholly dependent” on the deceased. The hospitality shown to the plaintiff and the casual financial assistance given to him by the deceased, in my opinion, were not “more than minimal” so as to qualify as “partial dependency” within the meaning of the Succession Act, section 57(1)(e)(i)...”

Without a finding of dependency, the plaintiff’s case failed at the first legal hurdle. He was not considered an eligible person under the Act, and the Court had no power to make any provision in his favour.

2. No factors warranting

If the plaintiff had established eligibility, he would then have had to overcome a further legal hurdle and satisfy the Court that there were “factors which warrant the making of the application” under s 59(1)(b) of the Act. Lindsay J reiterated the conventional test that “factors warranting” are “…factors which, when added to facts which render the plaintiff an eligible person, give him or her the status of a person who would be generally regarded as a natural object of testamentary recognition by the deceased” ([116]).

His Honour found that there were no factors warranting:

“Viewed in the context of the claims on the bounty of the deceased by the defendant… I am not satisfied that the plaintiff can properly be regarded as a natural object of testamentary recognition by the deceased beyond that given to him, as a default beneficiary.”

3. The Deceased had good reasons for his will

Lindsay J found that Walter had thoughtfully considered his family circumstances when making his final will. Far from being an oversight, the will represented “a deliberate recalibration” of the deceased’s testamentary intentions, shaped by a long and close relationship with Peter and his family. He had chosen to leave everything to Peter, who had shared his life, cared for him, and built a family with him on the same property.

Walter had also taken care to mention his grandchildren, including the plaintiff, as default beneficiaries if Peter died first. This showed that Walter had considered the moral claims of his wider family: “[123] …the deceased’s will not only reflects his considered testamentary intention but also accords with what a just and wise testator in his position would have done.”

4. No justification for notional estate order

Because the estate had already been distributed, the plaintiff asked the Court to treat some of the property transferred to Peter as “notional estate”, meaning the Court could still make an order against it. The judge refused:

“[120] I would not have been inclined to make such an order having regard to the importance of not interfering with the reasonable expectations of the defendant in relation to the property … the plaintiff’s impecuniosity, disability or straitened circumstances [are not] sufficiently ‘special’ to warrant the imposition of a substantial economic burden on the defendant and his family.”

5. Late filing

The plaintiff’s claim was filed 13 weeks outside the 12-month time limit prescribed by section 58(2) of the Act. While the Court stated that it would have granted an extension had the substantive claim succeeded, the issue ultimately became moot.

Key takeaways

This case provides a number of important insights:

• Ad hoc gifts or sporadic financial support, even if generous, will not necessarily support a finding of dependency. What is required is “proof of a relationship of dependency” ([80]).

• Living with the deceased is relevant to dependency, but short visits or staying in a spare room will likely not be sufficient to establish dependency.

• The court will respect a testator’s testamentary arrangements, especially if they are carefully considered and (as in this case) demonstrate a “deliberate recalibration” in light of changed personal circumstances.

• The status of a grandchild offers no advantage without proof of dependency: The judgment reinforces that grandchildren have no prima facie claim to provision. They must prove dependency, not simply close familial connection or sympathy.

• Expectations and disappointment are not grounds for relief. The Court was unmoved by the plaintiff’s claim of expected inheritance or hardship. As Lindsay J noted at [125] “[t]he misfortune the plaintiff has experienced in life cannot be laid at the feet of the deceased.”

• Time limits are strict. Family provision claims must be made within 12 months of the person’s death unless there is a very good reason (i.e. sufficient cause for the delay).

Conclusion

Broadus v Cradduck underscores the high threshold facing adult grandchildren seeking family provision from their grandparents’ estates. The case is a reminder that mere familial proximity, sporadic generosity, or historical hardship will not suffice. Rather, claimants must demonstrate a clear and sustained relationship of dependence. While the Court showed sympathy for the plaintiff’s difficult life, it ultimately found that Walter had “no legal, moral or social obligation” to provide for him in his will, and that his carefully considered wishes should be respected.

The judgment also reflects a strong affirmation of testamentary freedom in the face of opportunistic or marginal claims and signals judicial reluctance to second-guess a testator’s deliberate and rational will-making decisions. The deceased was not fond and foolish. He was, in the Court’s assessment, “wise and just”, and the court respected his judgment.

Author: Raffael Maestri

This publication is intended as a source of information only. No reader should act on any matter without first obtaining professional advice.