A person who dies without a valid Will is referred to as dying ‘intestate’. This means that their testamentary wishes are not considered, and their estate is not distributed according to their preferences.

In NSW, this means the deceased’s estate is distributed according to the hierarchy outlined in the Succession Act 2006:

  • If the deceased has a surviving spouse and children, their entire estate is automatically awarded to their spouse; or
  • If the deceased has a surviving spouse and children from another relationship, their current spouse is entitled to a ‘statutory legacy’ amount in addition to half of the remaining estate, with the other half being divided between the surviving children.

In the ACT, the deceased’s estate will be distributed according to the Administration and Probate Act 1929:

  • If the deceased has a surviving spouse and children with an estate worth less than $200,000, their entire estate is automatically awarded to their spouse; or
  • If the deceased has a surviving spouse and children with an estate worth more than $200,00, the first $200,000 of the estate is awarded to the spouse, with the remainder of the estate being equally divided between the spouse and remaining children.

In the case of Pender v Pender [2021] NSWSC 1591, the deceased died intestate with a small estate. She had married in 1972, but the relationship was unhappy and involved domestic violence by her husband. The couple separated in the mid-1980s, but did not divorce and the couple had not been in contact since this time.

The deceased had four children from that marriage, including three sons with whom she had little to no contact. She also had a daughter who regularly visited her at the nursing home and diligently cared for her. As the deceased died intestate, her estate ordinarily would have passed to her ex-partner as they were still married at the time of her death. However, her daughter made a family provision claim on her mother’s estate, with the deceased’s ex-partner and three sons ‘informally’ disclaiming opposition.

The Judge awarded the deceased’s entire estate to her daughter under section 59 of the Succession Act (as well as administration in respect of her mother’s estate). The judge’s reasons for this order included:

  • The deceased had little to no contact with her ex-partner and three sons;
  • The deceased’s daughter visited the deceased regularly and cared for her;
  • The estate was small; and
  • The deceased’s daughter suffers from a disability and needs substantial assistance.

It is important to understand that if you die without a Will, your estate will be distributed according to the statutory requirements of the State or Territory in which you live. Your assets will not be distributed according to your personal preferences, and no assets will be distributed to anyone outside your next of kin (e.g., a charity, niece, nephew, or important friend).

Additionally, dying without a Will can create uncertainty and delay. Legal disputes may arise if those left behind feel they have not been adequately provided for. The costs of those legal disputes will generally come out of the assets of the estate. It is therefore much better to avoid these disputes in the first place by making sure you have a valid Will which reflects your wishes.