Supreme Court rules contesting wills case plaintiff ‘at liberty to distribute’ parts of estate

Published 22 Nov 2013

When someone passes away before drafting an official written will, it’s a circumstance known as “dying intestate” that can lead to long-term inheritance disputes and contesting wills claims.

With no will to rely on, family members and friends will often come forward to claim either a share of the deceased’s estate, or to claim they have a right to have a say in how the estate should be distributed.

In some cases, a court can claim that a person died with partial intestacy. This occurs when a person has written a will, but it does not make clear mention of all pieces of property or funds.

In one recent New South Wales Supreme Court case, the judge had to look into several factors to determine whether the plaintiff, a NSW Trustee and Guardian (NSWTG), could freely distribute the intestate estate on a specified basis.

In the case, the NSWTG looked to determine who would be in charge of the estate of Peter Czmil, which would most likely be the next of kin who were still living at the time of his death.

However, later, it was learned that Mr Czmil was a bachelor, did not have a de facto relationship with any one, had no children, his parents had died before him and his only sister had already passed away as well.

Court looks to extended family

The case determined that Mr Czmil’s sister did have four children, and the NSWTG argued that it should be able to distribute the estate to these four recipients.

After reviewing the claim, the judge concluded that it would allow the NSWTG to distribute the estate to the children of the deceased’s sister, who would have received the estate had she been living at the time of Mr Czmil’s death.

However, he noted that this distribution would need to occur “without prejudice to the rights of any children of the deceased or full blooded siblings of the deceased or those claiming through them to trace his, her or their, share into the hands of the recipients if it were ever established that they survived the deceased or otherwise as the case may be”.

Intestacy wills can be extremely complicated, and it’s best to seek the advice of contesting wills lawyers to best handle the situation.

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