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Intestacy asset distribution successfully challenged

A case recently heard by the NSW Supreme Court demonstrates how an asset distribution proceeding according to intestacy rules can be challenged.

When an elderly mother died in 2011, her Will directed that her Estate be distributed equally among her two surviving sons.

That Will was written in 1978, shortly after the premature death of a third son. Since, in 1996, another son – one of those named in the Will – had passed away.

Thus, it followed that the mother’s Estate – valued at approximately $670,000 – would be equally distributed between her surviving son and his late brother’s Estate.

Critically, however, the son who passed away in 1996 had died intestate – without having drawn up a Will.

The ramifications of this intestacy meant that of the approximately $335,000 to be distributed to the late son’s Estate, around $242,000 would go to his spouse, leaving approximately $95,000 to be split among his five children (three from a previous marriage; his first wife died in 1976), for a share of around $18,500 each.

Two of the children from the deceased son’s first marriage filed a Family Provision claim, seeking a fairer distribution of the Deceased’s Estate.


It was found that a sufficient provision had not been made for the Plaintiffs by the Deceased in their Will.

Because the Deceased’s son had died intestate, the Plaintiffs only stood to receive around $18,500 each.

The judge directed that the two Plaintiffs should receive, respectively, $75,000 and $85,000, according to their individual circumstances.

In each case, the lump sum was considered enough to enable them to pay current debts and to provide a nest egg for the future.

Key Points

– When someone dies without having written a Will, they are said to have died ‘intestate’.

– There are rules applied to the distribution of assets for those who have died intestate.

– This can lead to perceived unfairness

Help with intestacy distributions

If you are unhappy at how the assets of a loved one are being distributed, it is a good idea to seek legal advice about what actions you can take.

Whether you plan on Contesting a Will or would like to investigate the possibility of Family Provision Claims where a loved one died intestate, specialist lawyers can help you understand the applicable laws and procedures.

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Contesting Wills
 — Gerard Malouf & Partners

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