Significant changes have occurred to legislation in the area of ‘intestacy law’ (the situation where a person dies without having a valid Will in place).

The spouse of a person dying without a Will, where there are children of that relationship and only that relationship, is entitled to the whole estate. This is presumably on the basis that he or she will then make provision for the children of the relationship in his/her own Will in due course.

However, if the deceased person has a child or children from another relationship, then the estate is to be shared. The intestacy provisions vary greatly and will depend on whether the deceased is survived by a spouse, (including a de-facto spouse), and whether there are children of that relationship, or of another relationship, living at the time of death.

In a blended family, where each partner may have their own children from previous relationships, the distribution of the estate on intestacy is not likely to satisfy the wishes of most people involved! Therefore it is essential that people leave a Will that makes proper and adequate provision for those closest to them.

Legislation has recently reduced the amount of time people have to make a claim against a Will to twelve (12) months from the date of death.

Valid Will

To be legally enforceable an Australian will must :-

• be made by a person over the age of 18 years

• be made willingly without undue influence from another person

• be made by a person of sound mind and full awareness

• be signed and witnessed in accordance with Australian law

In all cases of intestacy the state allows for the appointment of an administrator to administrate the estate of the deceased in the absence of the appointment of an executor under a will. The person applying for letters of administration will usually be one or more of the beneficiaries under the intestacy rules.

If you feel that you have been unfairly treated by a parent or a spouse in a Will, you need to obtain legal advice promptly, put the estate on notice of your claim and ensure that your proceedings, if they are to be commenced, are commenced within the 12 month time limit. Good legal advice is essential in this area because cost penalties can apply and legal costs may be capped in small estates even if your claim is successful.