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What happens when you die without a will and you don’t have close family members?

NSW Trustee and Guardian v State of New South Wales [2015] NSWCA 1121

In this case, a mother and adult son shared a home together. In tragic circumstances, both died on or around 18 September 2005. Neither had a will nor family members living in Australia. The closest family member that could be found in Australia was a niece of the mother (cousin of the son) and possible but unconfirmed relatives, including brothers and sisters, in Egypt.

Facts of the Case

The son and the mother were living together in their home in Rooty Hill NSW. The mother was a widow aged 94 years and affected by senile dementia, a stroke, cataracts, and in a physical condition that required constant personal care including assistance with mobility and feeding. The son was aged 66 and suffering from glioblastoma multiforme (a common and aggressive malignant primary brain tumour) known to cause seizures and speech difficulties. The son was nonetheless the mother’s full time carer under the Centrelink scheme.

careThe police confirmed that the mother’s body was found in the living area of the home near a wheelchair with a small rolling table overturned and lying across her body. The son’s body was found in the tub of the bathroom. There were no suspicious circumstances or signs of struggle. Whilst the autopsies were inconclusive due to the state of decomposition of the bodies upon their discovery, the police assessment was that the son had died in the bath probably as a result of a seizure and the mother died subsequently upon her inability to feed herself without her son’s assistance.

The Court was asked to determine the order of the deaths in relation to the application of the relevant statutory provisions being 61A-61F of the Wills, Probate and Administration Act 1898 (NSW) (“WPAA” or “the Act”). As the son had no relevant beneficiary relatives under the Act (cousins not being a listed beneficiary under Section 61B WPAA), his estate would have gone to the State of New South Wales if it was deemed that his mother had died first and therefore it could not have first passed to her.

How the estate was to be treated depended upon who had died first. If the mother had died first, her estate would have been inherited by her son, who himself then died. Because the son had no spouse, children or siblings, the estate would have eventually been given to the State. However, if the son died first, his estate would have been inherited by his mother (because he had no spouse, children or siblings). Upon her subsequent death, the estate would be held in trust for her siblings in Egypt.

 Although the evidence was not conclusive as to the exact cause and order of death, it was nonetheless not “uncertain” given the availability of some evidence which was on the “balance of probabilities” sufficient to establish it more probable than not that the son had predeceased the mother.  The son cared for the mother and it was therefore more probable that he died first. Therefore, the whole of the estate passed to the mother upon the death of the son and upon the subsequent death of the mother was placed under statutory trust for the brothers and sisters of the mother as to be determined by further searches and enquiries.

If you die without a will, it’s important to realise that it’s not just the distribution of your assets you are leaving to chance. The court will also have to decide who the executor of your estate will be, who will look after your children (if any) and even how your funeral will be carried out.

Last Will and testament document. sepia toned and vignette effect

Rather than leaving these decisions to the court, make sure you have a will and you make your final wishes known.

What Estate Planning Lessons Can You Learn From This Case?

  • Make sure you have a will
  • Identify a trusted person to be the executor
  • Think about how you would like to leave your assets and to whom
  • Understand that being part of a blended family makes the situation even more complex
  • Think about what-if scenarios – what if one of your beneficiaries goes through a divorce or goes bankrupt?

Drafting a will in accordance with the relevant legislation is complex. Make sure you consult an expert. Contact us today for your free, 10-minute phone consultation.