21 Apr 2022“I was close to someone who died without leaving a valid will, which meant an administrator had to be appointed to handle the intestate estate. Through this process, the estate was passed to someone who I felt wasn’t deserving of it. I believe the deceased person would have wanted me included in the distribution of their estate. But can I contest it when there is no will?”
Why it’s important to make a will
It’s far better to have a will, rather than leave the distribution of your assets to chance. Almost half of all Australians don’t have a will and so will have no control over where their estate goes. It could actually go to people they wouldn’t want to enrich with their accumulated assets.
You can learn more about what happens when someone dies without a will on the State Library NSW website.
How is an intestate estate distributed?
If there is no will when a person dies, the estate will be distributed according to a set formula called the law of intestacy.
When a person dies intestate, the distribution of the deceased’s estate depends on the relationship people had to that person. Top of the list in intestate distribution is the spouse or partner, followed by children, parents, siblings, grandparents, aunts and uncles, and finally first cousins.
The bad news is that if none of these people can be found or they are no longer living, the state government gets the lot. Now, I can’t think of anybody who would like their life savings to be handed to the government. So, I urge you to get a properly drafted will to make sure your estate goes to those you love.
Can you contest an intestate estate?
To contest an intestate estate, you need to be an eligible person under the NSW Succession Act 2006. In the vast majority of cases this is a spouse, de facto partner, child or dependant.
Where the deceased has ex-spouses or children from a previous relationship, the court may decide to include them in a distribution of the estate. It can get particularly complicated in blended families and among de facto partners, where the relationship needs to be proven.
If a person can satisfy the legal requirements of eligibility, they will still need to satisfy the court that they have a real need for support from the estate. The court weighs the financial situation and future needs of the claimant and other beneficiaries, as well as the closeness of their relationship to the deceased.
Any claim to a deceased estate must be “just and moral”
Where the government would otherwise be entitled to the estate, section 137(1)(b) of the Succession Act says a person outside the family, or an organisation that “reasonably” could have expected to be included in a will, can make a claim, but has to satisfy the court their claim is “just and moral” and establish there is a real need.
It is a complex process and anyone thinking of making a claim on an intestate estate should first consult a lawyer who is experienced in wills and estates.
For further information please see Contesting a will in NSW – the horror story edition and Can an adopted child challenge the will of adoptive parents?
