What is partial intestacy?

Published 06 Mar 2018

Author: Richele Nelsen

Various studies show that a significant proportion of the Australian population don't have a will. Depending on the source, between 40 and 55 per cent of people are yet to officially write down their final wishes.

Passing away without drafting a will is known as dying intestate. The Succession Act 2006 (NSW) provides instruction on how to handle the deceased's assets in these circumstances.

But what is partial intestacy? After all, surely a person has either written a will or they haven't? Well, the situation can become complex, particularly when someone has a large estate with significant assets and multiple beneficiaries.

Understanding partial intestacy

The term 'partial intestacy' isn't specifically mentioned in the Act. However, lawyers commonly use it when referring to estates where the deceased wrote a valid will but failed to dispose of all their assets.

The individual's estate is therefore legally considered partially intestate because money, property, shares or possessions aren't accounted for in the will.

Partial intestacy can occur for a number of reasons. The deceased may have tried to hide wealth from loved ones or written the will before they accrued the assets in question. Some people may simply have forgotten to include parts of their estate or been unaware they had ownership.

What happens when partial intestacy occurs?

The typical approach in partial intestacy cases is to distribute any assets covered in the will as instructed, while any excluded wealth is subject to normal intestacy laws.

According to the Act, intestacy assets must be bequeathed to beneficiaries via a formula based on familial relationships. Spouses and children of the deceased are prioritised, but the estate may go to the individual's parents, siblings, aunts and uncles or other relatives if the individual had no immediate dependants.

For a full explanation of how intestacy estates are handled, please click here.

But intestacy rules don't take into account the strength of the relationship between the deceased and the beneficiary. For example, significant proportions of an estate may be distributed to estranged or unknown family members in partial intestacy.

What should I do when partial intestacy occurs?

You may be eligible to pursue a family provision claim if you disagree with how a partially intestate estate has been handled.

An experienced contesting wills lawyer can explain how partial intestacy works, as well as your available courses of action if you feel a loved one did not leave adequate provision for your financial needs.

Please contact Gerard Malouf & Partners Will Dispute Lawyers today to discuss your options.

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