April 2015 Issue 103

Intestacy rules can cause heartache

B2B Editor1 April 2015

Dying without a Will can lead to unexpected results, especially for the family of a person who has recently gone through family law proceedings.

Media reports recently shared the story of a young man who died unexpectedly at the age of 30. He had previously had a short marriage in which he and his wife had purchased a block of land and had begun building a home, but at the time of his death, the couple had been separated for over two years.

Following separation, the couple divided their assets following a property settlement approved by the Family Court, and both the husband and the wife entered new relationships and began to move on with their lives. The wife initiated divorce proceedings and sent divorce papers to her estranged husband for his signature a number of months before his death. The young man died without signing the divorce papers and therefore the couple were still legally married at the time of his death.

Like many young people, the husband thought he did not need a Will and therefore he died intestate. The rules of intestacy set out how a person’s estate is divided between their family members if they die without a Will. In these circumstances, the estranged wife was entitled to the whole of the estate including the husband’s block of land (which he had received under their family law property settlement after paying out her share), superannuation, life insurance, cars and personal items.

The young man had been in a new relationship for 15 months. For the purposes of succession law, a de facto partner only becomes entitled to share in an intestate estate if the relationship has existed for 2 or more years or the couple has had a child together. Due to the short duration of the relationship, the new partner was not entitled to receive anything from the estate. Furthermore, in some Australian states and territories, a de facto partner is not entitled to make a family provision claim against an estate unless the relationship has existed for at least 2 years.

The young man’s father and new partner have spoken to the media about their disappointment with the legal outcome and have described it as unfair that the estranged wife, even after receiving a property settlement, now gets a second bite of the cherry in receiving the estate.

Undoubtedly, the rules of intestacy can have harsh consequences and can result in outcomes that may not be what the deceased would have wanted. The rules of intestacy are a default scheme, a legal fall-back for people who have not made a Will. The law does not allow Courts flexibility or discretion to alter the effect of intestacy, because people can easily opt out of this scenario by making a will during their lifetime.

In this story, the impact of intestacy has increased the heart ache of a family already grieving the untimely loss of a son and a partner. It is also a cautionary tale for people who have recently separated, not just to seek family law advice, but to also take the extra step of putting a new Will in place.

Rebecca Tetlow is an Accredited Specialist in Wills and Estates Law (NSW) and a Senior Associate at Dobinson Davey Clifford Simpson

phone (02) 6212 7600 [email protected], www.ddcslawyers.com.au