Where a deceased dies without a will the rules of intestacy will apply and the deceased's closest relative will inherit their estate. This raises the question: Is it possible to contest the distribution of the estate where there is no will?

Who Inherits the Estate if There is No Will?

In NSW if the deceased dies without a will, the estate is distributed according to the rules of intestacy outlined in the Succession ActIn intestacy cases, the entire estate will pass to the deceased's closest relative, and no regard will be given to any wishes expressed by the deceased during their lifetime.

Eligible Relatives

The Succession Act outlines the order of categories of relatives who are eligible to inherit the deceased's estate. These categories are as follows:

  1. Spouse (including de facto partner);
  2. Children;
  3. Grandchildren;
  4. Parents;
  5. Siblings:
  6. Nieces and Nephews;
  7. Grandparents;
  8. Aunts and Uncles; and
  9. Cousins.

Who Inherits?

The rules of intestacy require each category of eligible relatives to be exhausted before moving onto the next category. This means that the first relative deemed eligible will inherit the entire estate. For example, if the deceased is survived by their spouse, the estate will pass entirely to the spouse. However, if the spouse has predeceased the deceased, the estate will pass to the deceased's surviving children and so on until an eligible relative is found.

If the deceased as no eligible relatives, the estate will pass to the Crown.

Can the Distribution of the Estate be Contested?

Dying intestate does not prevent eligible persons from contesting the distribution of an estate under the family provision legislation. A family provision order can displace the intestacy rules and allow the Court to redistribute the estate in favour of the applicant where the applicant demonstrates that they are an eligible person who meets the specified criteria.

The persons eligible to make a family provision claim are set out in the Succession Act.

The categories of eligible applicants in family provision extends beyond the categories of relatives eligible to inherit the estate under the rules of intestacy. While, spouses, de facto partners and children will automatically be eligible to make a claim, subject to the circumstances of the case, former spouses, grandchildren, member's of the deceased's household and person's who were living in a close personal relationship with the deceased, may also be eligible persons.

To successfully claim family provision, an eligible applicant must demonstrate that they have been left without adequate or proper provision for their 'maintenance, education, or advancement in life'. What constitutes a 'proper' or 'adequate' provision will depend on the circumstances of the case, and the Court will consider a range of factors, including, the applicant's financial needs, their relationship with the deceased, the size of the estate, and any competing claims on the estate.

As with the laws of intestacy, family provision is not concerned with the wishes of the deceased, although the deceased's wishes may be taken into account in determining what an 'adequate' or 'proper' provision would be.

DISCLAIMER: The information provided above is published for general informational purposes only and is not intended to be nor should it be relied upon as a substitute for legal or other advice.