How can intestacy occur?

Date: Oct 22, 2014

Intestacy - when a person dies without a will in place - can create a lot of problems for relatives and will often lead to an estate dispute over the allocation of assets.

Unfortunately, intestacy can occur in a number of different ways, depending on the situation of the deceased when they pass away. This means that even if an individual has a will in place, they may still be declared to have died intestate for other reasons.

To help understand these differences, here are three ways that individuals can die intestate, even when they have written a will.

A will that has not been properly drafted

As with all legally binding documents, there are a number of requirements that are placed on the composition of a will. For example, there are legal rules governing the construction of a will which need to be followed in order for the final document to be granted probate by the courts.

If the will is unreadable or does not conform the legal requirements, the document may be declared void, which will create a situation of intestacy and any assets will be allocated according to a preset formula by the courts.

No witnesses were present when the will was signed

Like the requirements for drafting a will, individuals also need to complete the legal requirements for confirming the authenticity of a will. For example, a will needs to be signed by witnesses in order to be valid.

Even if the will itself conforms to the legal requirements for its content, failing to have the document witnessed will lead to a case of intestacy.

Partial intestacy

In some cases, the assets of an estate will not have been properly allocated, or some part's of a deceased's estate will not have been bequeathed at all. In these instances, the case is referred to as partial intestacy - where the deceased's will is valid, but incomplete.

In this situation, the legal requirements for the will increase, with the intestate part of the will requiring extra attention and expense in order to administer properly.

If you want to draft a will that conforms to legal requirements, or want to contest a case of intestacy or partial intestacy, it is important to get in contact with a wills and estates lawyer. They can offer the right advice on your situation and provide information that caters to your position.