No Will – At your Peril

Posted on August 1st, 2013

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by Robert Lindsay

Robert Lindsay is a Director at Mullane & Lindsay in Newcastle and leads our Commercial & Property Law team.

The Succession Amendment (Intestacy Act 2009) commenced on 1 March 2010. The Act details who is eligible to inherit the property of a person who has died without a Will. Interestingly, the Act now provides for the concept of multiple spouses. If a person dies without a Will and dies with a spouse and a domestic partner but has no children and if the spouse and domestic partner survive 30 days after the death of the deceased, then they will share the whole of the estate either;

  1. In equal shares; or
  2. Under a distribution agreement; or
  3. Under a distribution order.

A domestic partnership can include a de facto relationship that has been in existence for a continuous period of 2 years, or has resulted in the birth of a child. It can include same sex relationships. However, the definition of a spouse does not include an ex spouse. This area of the law is complicated. The complication can be avoided if an up to date Will exists at the time of death. This is likely to avoid competing claims by a spouse (whether the deceased was living with her at the time of death or not) and a domestic partner after death.

The law remains that if a person divorces his or her spouse but fails to update his or her Will, then any provision in the Will passing to the former spouse, fails. It is therefore wise for a person to make a new Will as soon as possible after separating from his or her spouse.

Robert Lindsay is a Director at Mullane & Lindsay, and practises extensively in Commercial Law, Property Law and Wills & Estate Planning. If you require any assistance in this area please contact Robert Lindsay to arrange a consultation or contact our Newcastle office.

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