Intestacy – the rules of Succession
Intestacy: refers to a situation where somebody has died without leaving a valid will. If you die without a will, a statutory formula is used to determine how your assets are distributed. Consider the following scenario:
Karen died without a will and left her de-facto partner Paul. Karen also left a child Chloe from her previous marriage with Mark (now divorced). According to the statutory formula:
- Paul will be entitled to Karen’s personal effects, statutory legacy ($490,000 approximately and CPI adjusted) and one-half of the remainder (if any) of Karen’s estate.
- Chloe will be entitled to the remaining one-half of Karen’s estate after Paul’s entitlement has been taken out; and
- Mark will not be entitled to receive any of Karen’s estate.
This scenario involving Karen’s estate may not have been at all how Karen would have wanted her estate to be distributed. If only Karen had a valid will at the date of her death!
The take-home point of this is that the intestacy rules can get tricky, particularly if there are multiple spouses and can lead to estate disputes. That is why it is important to consult a lawyer who specialises in wills and estates.
The order of death can be important where it is relevant to the determination of the destination of the estates of the deceased. This was demonstrated in NSW Trustee and Guardian v State of New South Wales [2015] and demonstrates the need to have a willlawyer prepare a will for you.
In this case a mother and son were found dead in their shared home. Both the mother and son died without a will, so the destination of the estates and the persons entitled on intestacy would be determined by the sequence of death. The mother was a widow, with one child and there was no evidence that the mother had remarried, entered a de facto relationship, or had an issue after her husband’s death. The son was unmarried and there was no record that he had ever had any children.
Dependant on the sequence of death, there are two potential outcomes. If the son had died first the entirety of his estate would pass to his mother. From there the assets would be distributed according to the intestacy rules of the Succession Act 2006. Alternatively, if the mother died first her estate would pass to her son and then be distributed in accordance with the intestacy formula.
In determining the sequence of death, the court heard circumstantial evidence from detectives that had found the deceased. The court also referred to section 35 of the Conveyancing Act, which provides that where two or more people die in circumstances where there isuncertainty in the order of death, then the deaths are presumed to take place in the order of seniority.
As such, the younger is assumed to have survived the elder. This only applies where circumstantial evidence cannot be used to establish who died first. In this case, due to the circumstantial evidence presented, the court found that on the balance of probabilities it had been established that the son had died first.
More Information
If you wish to obtain further information, advice or assistance in updating your will, or will dispute please contact one of our will lawyers in our Estate Planning team at Matthews Folbigg on 9635 7966, email us at estates@matthewsfolbigg.com.au or through the website www.matthewsfolbigg.com.au
DISCLAIMER: This article is provided to readers for their general information and on a complimentary basis. It contains a brief summary only and should not be relied upon or used as a definitive or complete statement of the relevant law. Liability limited by a scheme approved under Professional Standards Legislation.
