Can I make a claim where no Will was made?

It is often the case that people die without making a Will. In these circumstances it may be possible for you to make a claim on the Estate of the deceased with such claim being dependent on your relationship with the deceased.

Under the rules of intestacy, which is where a person dies without a Will, the following will be applied when distributing the Estate of the deceased:

  1. If the deceased had a spouse but no children, the spouse will be entitled to the whole of the deceased’s Estate. It is important to note that the legislation includes people in a domestic partnership or de facto relationship under the definition of ‘spouse’.
  2. If the deceased had a spouse and they had children together, then the spouse will be entitled to receive the whole of the deceased’s Estate.
  3. If the deceased had a spouse and children with another person, then the spouse will receive the deceased’s personal effects, a statutory legacy and one-half the remainder of the Estate. The deceased’s children will be entitled to the remainder of the deceased’s Estate.
  4. If the deceased had no spouse or children then their parents will receive the whole of the Estate. If the deceased’s parents are no longer alive then the deceased’s brothers or sisters will be entitled to receive the deceased’s Estate.
  5. If the deceased had no spouse, children, parents, brothers or sisters then the deceased’s Estate will go to their grandparents. If the deceased’s grandparents are no longer alive then the Estate will go to their aunts or uncles.

Even if you do not fall under one of the above categories, you may still be eligible to make a family provision claim on the Estate, if you are an eligible person under the legislation. An eligible person under the legislation includes:

  • A former husband or wife of the deceased; or
  • A person who was, at any particular time, wholly or partly dependent on the deceased and who was a grandchild of the deceased or a member of the deceased’s household at any time; or
  • A person with whom the deceased was living in a close personal relationship at the time of the deceased’s death. A close personal relationship means a relationship between two adults who are living together, other than a marriage or de facto relationship, where one or each of them provides the other with domestic support and personal care.

A family provision order, can be made by the Court if the Court decides that adequate provision for your proper maintenance, education or advancement in life, has not been made by the operation of the intestacy rules.

If you believe you have a claim on an Estate where there was no Will you need to talk to our expert Wills and Estate lawyer as soon as possible.

Graeme Heckenberg is an expert Wills and Estate lawyer. If you are living on the Northern Beaches and surrounding Peninsula and need help and advice in a Will dispute or Estate matter, call The Northern Beaches Lawyer today for an appointment close to home on 9221 0341 – City Experience By the Beach.