While most people prefer to leave nothing in life to chance,
there are many who don't get around to making a Will, for one
reason or another. Life is busy after all and planning for death is
surely to tempt fate in the wrong direction. Those who are married
often make the assumption that the surviving spouse will take
everything, in all circumstances. Sadly, this is not the case.
Matters of succession on intestacy are governed by the
Non-Contentious Probate Rules 1974 and the Succession Act 1974. The
Non-Contentious Probate Rules 1974 establish the order of priority
for taking a grant of letters of administration when a person
(called the "intestate") dies without a Will (called
"intestacy"). The relevant order of priority is the
surviving spouse, then the children of the intestate or the issue
(child, grandchild etc.) of a child of the intestate who has died
during the intestate's lifetime, followed by parents through
brothers and sisters (whole blood, followed by half blood) and
their issue, grandparents, uncles and aunts and so on.
The Succession Act 1974 establishes the priority as to
beneficial interests in an intestate's estate. If the intestate
leaves only a spouse, the spouse takes the residuary estate
absolutely, and if the deceased leaves only issue, they will take
the residuary estate between them in equal shares, with the
children of any deceased child of the intestate dividing their
deceased parent's share equally between them (this is known as
a division per stirpes– where each branch of the
family receives an equal share of an estate). After these
scenarios, however, things get more surprising.
If the intestate leaves a spouse and issue, the spouse will take
the personal chattels absolutely, and, in addition, a sum equal to
half of the value of the residuary estate or $100,000, whichever is
greater, and the balance of the residuary estate will be held for
the deceased's issue per stirpes. This is not so, bad,
except, potentially, in a situation where the children are very
young and the spouse could more purposefully use those funds stuck
in trust for the children.
Far worse is the situation where the deceased leaves a spouse
and any one or more of a parent, brother or sister, nieces and
nephews, grandparents etc. but no issue. In this case the surviving
spouse will take the personal chattels and a sum equal to
two-thirds of the value of the residuary estate or $150,000,
whichever is the greater and the intestate's parent(s) or
siblings, or nieces and nephews, as the case may be, will share the
remaining third of the estate. This can come as quite a surprise to
the surviving spouse. It should be noted that in each scenario, the
surviving spouse can require the personal representatives of the
estate to appropriate the marital home toward the spouse's
share of the estate, assuming the estate is of sufficient value,
which is some comfort.
In the absence of a spouse or issue the order of priority for
benefit is parents, siblings (whole blood or their issue, then half
blood or their issue), grandparents, uncles and aunts (whole blood
or their issue, then half blood or their issue) and if no blood
relative can be found, the crown will take the estate.
Some relief is available in the Succession Act 1974, which
provides that a spouse, former spouse (who has not remarried),
child or grandchild (who was being maintained in whole or in part
by the deceased) may make application for financial provision out
of the deceased's estate, either in circumstances where there
is a Will and a spouse or child has been left out or inadequately
provided for, or where the intestacy trusts discussed above are
inadequate for the applicant's needs. The court will have
regard to the financial resources and needs of the applicant and
all other relevant circumstances in reaching a decision.
If it is your intention to benefit your spouse to the fullest
extent possible, you need to say so in a Will. And if you are one
of the many who live with someone, but are not married or have
children you consider your own who are not legally yours, there is
no way to benefit them without a Will. The law of succession will
not recognise co-habitees or their children.
Why leave your estate planning to chance, when you can so easily
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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