Man’s estate left to brother after intestacy rules are applied

Published 07 Jul 2015

Dying without a will can often lead to an inheritance dispute, as many people may feel they are entitled to a share of the estate. However, in some cases, the opposite can occur and it may be difficult to find any living relatives to whom the deceased can leave their assets.

This is what happened in a recent case heard by the NSW Supreme Court, in which a 73-year-old German man died in 2012 with no traceable wife or children.

When someone dies without a will they are deemed to have died intestate. In this case, their estate is handled through intestacy laws, which are outlined in Chapter 4 of the Succession Act 2006.

NSW Trustee and Guardian, the administrator of the estate, made several attempts to track down the man’s living family. This included checking records in both Poland and Germany, where he lived until he immigrated to Australia in 1962.

Both his mother and father were deceased, as well as a sister, who was killed in a traffic accident in 1949. However, the man had one surviving brother, who would inherit his entire estate if no other living relatives could be identified.

The search continues

Intestacy rules typically favour an individual’s spouse and children. The exact distribution of assets depends on a formula that takes into account a range of factors, including the number of children and whether the surviving spouse is their parent.

Upon arriving in Australia in 1962, the man settled in Melbourne before moving to Dulwich Hill in Sydney. Despite extensive searches in both cities, there was no evidence that the deceased ever married or had children.

The courts therefore granted a Benjamin order, which allows the trustee of the estate to distribute assets on the basis that no other legitimate beneficiaries exist. While this does not mean the deceased had no other beneficiaries that could be entitled to a share of his estate, the search for such individuals would be impractical and potentially expensive.

If people who are eligible to make a claim do come to light at a later date, their entitlement is not harmed by the Benjamin order. However, in the meantime, the surviving brother received the entirety of the deceased’s estate.

Are you unsure about intestacy rules or how the distribution of an estate is affected when there is no will? Please contact contesting wills lawyers in Sydney who can help you discuss the issue.

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