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Domicile Issues In Contested Wills

Domicile Issues In Contested Wills In NSW

Domicile is defined as the country that a person treats as their permanent home or lives in or has a connection with.

Where a person is domiciled is an important aspect of Wills and Estates law as it can affect where and how the assets of the deceased are distributed.

Recent court proceedings in Application of Perpetual Trustee Company Ltd; Re: Estate of the late Evelyn Mary Dempsey [2016] NSWSC 159 demonstrate the issues that can arise from confusion over the domicile of a deceased person when distributing the deceased’s Estate.

In this case the Supreme Court was asked by the Perpetual Trustee Company for guidance on whether it would be justified in distributing the intestate share of the deceased Estate of Ms Dempsey on the basis that she was living (domiciled) in New South Wales at the time of her death.

The value of Ms Dempsey’s Estate was approximately $6 million dollars and this was made up of assets in Australia as well as assets in the United Kingdom.

Ms Dempsey left a valid Will where she gave small inheritances to a number of people and charities in Australia with the remainder of the Estate to be held on Trust in equal shares for two other family members, with one of the shares to one of the family members to pass to the University of Sydney in the event of this family member’s death. Unfortunately the two other family members died before Ms Dempsey. One of the shares in the Estate passed to the University of Sydney in accordance with the terms of the Will with the other share resulting in an intestacy.

Domicile Issues in Contested Wills

The issue of who would inherit the intestate share of the Estate was complicated as the laws in each State in regards of distribution of an intestate Estate can differ. For example, in one State brothers and sisters may be entitled to receive from an intestate Estate but they may not be eligible to receive from an intestate Estate in another State.

Under the relevant legislation if the Court held that Ms Dempsey was domiciled in New South Wales at the time of her death then the intestate part of the Estate would pass to the State of New South Wales, in accordance with the New South Wales laws of intestacy. If the Court held that Ms Dempsey was domiciled in Queensland at the time of her death then, in accordance with the Queensland laws of intestacy, Ms Dempsey’s surviving cousins would inherit the intestate share of the Estate.

The Court held only that Ms Dempsey was domiciled in Australia leaving open the question of whether she was domiciled in New South Wales or Queensland at the time of her death. The reason the Court gave for leaving this question open was to allow Ms Dempsey’s surviving cousins to make a claim against the Estate on the basis that Ms Dempsey was domiciled in Queensland at the time of her death.

At Northern Beaches Lawyers, we often come across cases of domicile, so if you think that this may cause a problem in your Estate affairs book a consultation today with Graeme Heckenberg who has been in practice for over 25 years and is an expert in Wills and Estates. Offering a No Win No Fee consultation, on contested Wills,  what have you got to loose?

Book today on 9221 0341 or email info@hecken.com.au

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