Widow and newborn son lose home after husband dies intestate

Published 07 Feb 2019

A Perth widow and her newborn son have had their home repossessed after her husband died without a Will.

As well as dealing with the grief of losing her husband, the then pregnant widow had to begin a five-month plea to be legally recognised as his beneficiary, as he had died intestate.
During this time, unpaid mortgage payments were accumulating, and by the time the life insurance policy had been paid out, she was $30,000 short of the cost. Because of this outcome, the bank repossessed and sold the house through an auction, despite the widow’s desire to remain in the home with her newborn son and her parents offering to provide the outstanding payment.
In a statement, the bank acknowledged their insensitivity in handling the situation, and ensured that its standard of care and handling of similar matters would be reviewed and improved.

What happens if I die intestate in NSW?

If you pass away without a valid Will in NSW, you die intestate. In accordance with the Succession Act 2006 (NSW), your assets are distributed to surviving immediate family members.
If eligible parties want to benefit from the estate, they must survive the deceased for 30 days before they are eligible to make a claim. If you die without having had children, your spouse will automatically inherit your entire estate. This isn’t applied to previous spouses with children from a prior relationship, as they will need to prove moral obligation and dependency on the deceased in order to challenge the division.

What if there is a Will, but I am not taken care of?

If you are eligible to challenge the Will, you may be able to file a claim under the Family Provisions Act 1982 (NSW). In order to make a claim from the estate, there needs to be proof that the deceased would have had a moral obligation to support you, to ease your current financial situation or to finance personal endeavours. If you believe that the contents of a Will have been divided unfairly, a case needs to be established outlining the reasons behind the discrepancy and why this cannot be justified.

If you are seeking help or legal advice around contesting a Will in NSW, get in touch with the experts at Gerard Malouf & Partners Compensation, Medical Negligence & Will Dispute Lawyers for a complimentary 90-day trial of services and a no win, no fee guarantee.

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