26/02/2016

A tragic NSW case serves as a reminder of why it is important to have a Will and not let the Courts decide who gets your estate.

In the case of NSW Trustee and Guardian v State of New South Wales [2015] a son and mother were both found deceased and it was unclear who had passed away first.  The court was asked to assess the evidence and make a decision as to who died first.

As the deceased family members passed away in 2005, the relevant legislation that applied to the case was the Wills Probate & Administration Act 1989 (NSW) instead of the Succession Act 2006 (NSW) which applies to any deaths of an intestate person on or after 1 March 2010.

The question for the court was important because under the legislation at the time:

If the son died first then:
•    the estate would pass to his mother,
•    then to the mother’s brothers and sisters; and
•    then to any of the mothers nieces or nephews (it was known by the parties that the mother had a niece living in Australia).

On the other hand, if the mother died first:
•    the estate would pass to the son,
•    then to any surviving aunts and uncles of the son; and
•    failing any aunts and uncles, the estate would pass to the Crown as bona vacantia (property that has no owner).

The evidence showed that the son was the mother’s carer and there was the possibility of the mother passing away from starvation due to the inability to feed herself without the son’s help.  Based on an assessment of all the evidence the court came to the conclusion the son died first.  The court stated further investigation would need to take place to establish the identities of the mother’s brothers and sisters first, and then any nieces or nephews of the mother.

A Will gives a person control over their estate; a say in where and who it goes to.  The Will maker can also give gifts to non-family members, including charities.   A person who dies intestate (i.e. without a Will) has no choice.  The rules are set out in the legislation which dictates the administration of the estate.

Instead of taking the risk of letting an estate be paid to the Crown, or having the law decide where an estate should go, it is important to have a Will prepared in advanced.  The Will maker is able to control their assets and specify exactly where their assets go after they have gone.  Once a Will is made, it should be regularly reviewed to ensure the Will maker’s wishes are correctly reflected in the document.

Please contact Townsends Business and Corporate Lawyers on (02) 8296 6222 should you require any assistance with Wills and other estate planning matters.