Decision of intestacy made at the NSW Supreme Court

Date: Jul 16, 2014

If a family member dies without a will (intestate), problems can arise regarding the division of their estate. To determine how assets will be divided in such a scenario, it may be necessary to submit a claim to the Supreme Court. 

In a recent New South Wales Supreme Court decision, property settlement claims were made by the deceased's children and first and second wives after he died intestate.

The court found divided the balance of the estate four ways between three of his children, and the estranged widow.  

The first wife of the deceased claimed she was in a de facto relationship with the deceased at his time of death and lodged a claim to the deceased's estate under s 125 and s 59 of the Succession Act 2006. Section 125 refers to sharing between spouses and s 59 refers to a family provision order.

What to do if a loved one dies intestate

If a loved one dies without a will, property does not pass onto the state. Instead, eligible relatives will inherit the estate - the process by which this occurs is governed by chapter 4 of the Succession Act 2006 (NSW). If there are no eligible relatives the estate may pass onto the state. 

If there is no eligible will, one of the beneficiaries may apply for Letters of Administration. If the application is granted, the applicant takes on the role of the Administrator of the Estate. The following documents are required to file an application for a grant of Letters of Administration at the Supreme Court: an affidavit of applicant for administration, an affidavit stating the deceased was not engaged in a de facto relationship (however, there is an exception to this if the de facto spouse is making the application), and potentially an administration bond. 

Lodging a claim for the division of the deceased's estate can be a complex process. Legislation cited in the aforementioned case included the Evidence (Audio and Audio Visual Links) Act 1998, the Family Law Act 1975 (Cth), the Family Provision Act 1982, the Probate and Administration Act 1898 and the Succession Act 2006. 

If you would like to lodge a property settlement claim for an individual who has died intestate, a lawyer can assist you with property settlement agreements and any estate disputes that may arise.