Sydun & Co Solicitors

“When there is a Will…”

Dying without a valid Will is referred to as dying “intestate”. This can arise when there is no Will in existence, the Will is invalid or the Will is valid but does not effectively dispose of the deceased estate.

The deceased estate is comprised all assets of the individual. As a rule, superannuation is not regarded as an asset unless an express direction to this effect is given to the superannuation fund. Any debts or testamentary expenses of the deceased are charged against that estate.

When intestacy occurs, the estate is distributed in accordance with the Succession Act 2006 (NSW) (“the Act”) as opposed to being distributed to reflect the deceased’s wishes.

The legislation determines that the estate will be distributed amongst the deceased’s nearest blood (or adoptive) relatives in this order:

  1. Spouse (if no children). This includes marriage and domestic partners. Dying intestate complicates the inheritance process for domestic partnerships and a de facto partner may have to prove their relationship to the Court who take into account a number of factors such as relationship length, cohabitation, sexual relationship, financial interdependence and household and childcare responsibility division. A party who is separated, but not divorced, from the spouse at the time of the death would still be entitled to the deceased’s estate.
  2. Spouse and children.
  3. Children (if no spouse). Under the Act, any adopted or biological children have identical rights and inherit equal portions of the estate.
  4. Parents.
  5. Sibling(s).
  6. Grandparents.
  7. Aunts and Uncles.
  8. Cousins.

A common source of contention for dying intestate is spousal status. Unfortunately, death may occur at any time such as during a messy divorce or even when a relatively new relationship legally becomes a domestic partnership. These sorts of factors can work against the wishes of the deceased considerably especially where children are involved.

Not only does intestacy mean that your asset distribution may not reflect your wishes, it can cause disputes between family members regarding distribution entitlements. The costs of these disputes can be at the liability of the estate and result in your asset pool being significantly reduced.

Invalid Will

Under the Act, a Will can be deemed as invalid for the following nine reasons.

  1. It is not in writing nor signed by the will-maker or at the direction of the will-maker in accordance with the Rules. An example of this is a Will produced fraudulently.
  2. The signature of the will-maker was not properly witnessed.
  3. Two or more of the witnesses did not sign the Will in the presence of the will-maker.
  4. The will-maker did not sign the Will with an intention to execute a Will.
  5. It is not up-to-date as the will-makers legal rights have changed. Some examples of instance where legal rights might be altered include marriage, divorce, separation, death of a spouse, death of beneficiaries and having children or grandchildren.
  6. The will-maker lacks mental capacity (otherwise called testamentary capacity) at the time of making the Will. This is a common reason where Wills are deemed invalid especially where the Will is executed in old age. If in doubt, it is always best to get a professional capacity assessment at the time of Will execution to avoid requisitions surrounding capacity from the Supreme Court of New South Wales. While costly, it does assist the Court in considering whether or not a grant should issue.
  7. If another Will was executed at a later date. The most current Will supersedes any prior Wills unless deemed invalid.
  8. The Will was altered after it was initially executed.
  9. The will-maker was under duress in writing and executing the Will, i.e. forced or pressured to produce the Will.

In brief, if you have assets you need a Will if you want to control the disposition of those assets.

If you do have a Will, you need to review it regularly to see that your needs have not changed over the years.

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