Estate awarded despite deceased dying a century ago

Published 14 Mar 2019

A property belonging to a man who died without a Will over a century ago has become the subject of a dispute in the Supreme Court of New South Wales.

The case

The deceased was born in 1839 in Treysa, which was then a part of the German Confederation. In 1865, he emigrated to the colony of New South Wales, purchased a property and was naturalised in 1874. Eventually, he moved back to Berlin where he died in 1907. The property in which he lived in New South Wales was sold in 2011 by trustees appointed for the purpose. However, in September 2014, an appointed trustee published a formal intention to distribute the remaining proceeds of the estate, valued around AUD$190,000, after being in contact with some of the deceased’s descendants in both the United Kingdom and the United States.

To determine the hierarchy of succession, or who is eligible to inherit from the estate, the validity of the existing Will needs to be established. Due to the estate being over a century old, the deceased, his wife, both of his daughters and two out of three of his grandchildren had all passed away before the deceased’s interests for the property were determined. This resulted in the deceased dying intestate.

In accordance with the Succession Act 2006 (NSW), the Court ruled that the plaintiff was allowed to distribute the proceeds of the deceased’s sold property. The money is to be split between the heirs of the deceased’s two daughters.

What happens if you die without a Will in NSW?

If you pass away without a valid will in NSW, you die intestate. There are many reasons why someone may die without a Will, from not having sound testamentary capacity, or having multiple copies of an existing Will. In the instance of intestacy, an estate is divided in accordance with specific hierarchy of succession. If the deceased is survived by a spouse or de facto partner, the estate is awarded to them, followed by any existing children. If there is no spouse or children, those next in line to inherit are the following, in this order:

  • Parents.
  • Siblings.
  • Grandparents.
  • Aunts and uncles.
  • Cousins.

Having a Will ensures that in the event of your death, your estate will be divided in accordance with your wishes, and can help your family members with the legalities during an already difficult time. If you are considering contesting a Will, get in contact with the experts at Gerard Malouf & Partners Will Dispute Lawyers for a 90-day complimentary trial of legal services.

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