Published 05 Dec 2017
Anyone who writes and executes a will in NSW is known as the document's 'testator'.
Testators name various beneficiaries in their wills to ensure their assets are appropriately distributed among loved ones, charities and other causes when they die.
But what happens if a beneficiary dies soon after the testator? Or if the beneficiary dies before the testator, yet the individual failed to update their will to reflect these changes?
The answer often depends on the way in which the will was written.
What the Succession Act 2006 says
We first need to establish whether it matters if the beneficiary died before or after the testator.
According to the Succession Act 2006 (NSW), beneficiaries must survive the testator by at least 30 days for them to receive any legacies outlined in a will.
If this criterion is not met, a beneficiary's entitlements are treated as if they passed away before the testator.
Beneficiaries who die after this 30-day period receive their part of the deceased's estate, which is then likely to be distributed to loved ones according to the instructions within their own will.
How the Act applies in practice
When a beneficiary dies before the testator or within the 30-day limit, a number of things can happen to their legacy, but well-written wills should include clauses that anticipate these events.
For example, a woman who intends to leave the entirety of her estate to her husband may specify that her assets must go to her parents if her spouse predeceases her.
However, a more informal will may not provide this level of security. The courts may make a partial intestacy ruling in these cases.
Intestacy means the testator died without making a valid will, while partial intestacy usually applies when someone has a will but doesn't dispose of the entire estate within the document.
Intestacy rules and contesting a will
Asset distribution follows a particular formula under intestacy rules.
A beneficiary's share of an estate is likely to be distributed according to these specifications if the individual predeceases the testator and this leads to partial intestacy.
However, other beneficiaries or claimants may decide to contest the will if they feel they have not received adequate provision from the testator's estate.
Poorly written wills are more prone to inheritance disputes, but even a professionally produced document can be contested if an eligible person has a reasonable claim.
Please contact Gerard Malouf & Partners Will Dispute Lawyers to discuss your options.