Can I challenge an estate if there is no will?

Published 15 Mar 2018

Author: David Cossalter

Dying without a will is more common than you might think. Almost half of people in the country haven't written down their testamentary intentions, according to research from the Australian Securities and Investments Commission.

Even some of the world's biggest stars failed to write a will before they died, including Jimi Hendrix, Bob Marley and Amy Winehouse.

They left behind sizeable estates worth millions of dollars, but what happens to their assets in these circumstances? And can family members still challenge an estate when there is no will?

Dying 'intestate'

The official term for passing away without writing a will is called 'intestacy'.

When an individual is deemed to have died intestate in NSW, their assets are distributed according to a formula outlined in the Succession Act 2006.

The process can be complicated depending on how many spouses, former spouses and children the deceased had. If there are no spouses or children, the estate passes to other relatives. In descending order, these are:

  • Parents;
  • Siblings;
  • Grandparents;
  • Aunts and uncles; and
  • First cousins.

One of the key problems with intestacy is that the deceased has little control over who receives a legacy from their estate. There are also no allowances for charities or friends within intestacy legislation.

Challenging an estate with no will

You are entitled to challenge the estate of someone who has died intestate, provided you are an eligible person under the Act.

This includes spouses, children and certain dependants. Arguably, claimants are more likely to succeed with a family provision claim in these cases due to the fact the deceased left no testamentary intentions and intestacy rules often disinherit legitimate beneficiaries.

Nevertheless, claimants will still be expected to present a convincing case to the courts as to why they should receive additional provisions from the estate.

A judge takes into account various factors when ruling on a family provision claim, including the claimant's relationship with the deceased, the claimant's present and future financial needs, and any prior dependency on the testator.

Pursuing a family provision claim in intestacy cases

You should contact an experienced contesting wills lawyer if you intend to launch an inheritance dispute against the estate of someone who hasn't left a will.

They can provide legal advice regarding your eligibility to claim and the likelihood of a favourable outcome, as well as gather evidence on your behalf to proceed with the claim.

Gerard Malouf & Partners Will Dispute Lawyers have decades of experience contesting wills in Australia's most esteemed courts. Please contact us for a free consultation.

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