Please select your state

We will show you information specific to your state.

Home | Q & A on 2GB discussing Wills & Estate Law 01/08/13

Laws of intestacy – when a person dies without a legally valid will

Thursday, 1 August 2013


Luke    I noticed I recall in yesterday’s Daily Telegraph which told a story of Natalie Jean Wood whose body lay in her home for 8 years after her death 8 years. 2 long lost cousins could be entitled to a size of her million dollar estate consisting of a Surry Hills townhouse, $79,000 in a bank account, despite not having been in contact with her for decades.  It’s just amazing how an estate can bring long lost relatives out of the woodwork and cause all matter of strife for family members.  Today our legal segment, thanks to Turner Freeman, covers Wills and Estates and Paul Sant is with us in the studio. Paul, good to talk to you.

PS       How are you Luke?

Luke    I’m really well. This is an amazing story. I guess you’d be aware of this case if it’s true because Natalie Jean Wood had not left a Will. Could up to 12 long lost cousins be entitled to a share of the Estate?

PS       Yes.

Luke    Yes?

PS       Yes.  There’s a statutory formula as to who’s entitled. If you die without a Will. Firstly, it’s spouses.  If you don’t have a spouse, then it’s children. If there’re no children, then parents and then it goes to brothers and sisters. And recent amendments to the Act include cousins.

Luke    Wow.  So, if one cousin was in contact, goes to the funeral, and the others don’t, is there any kind of…you know…?

PS       No, under the laws of intestacy, one cousin’s the same as the other.

Luke    Are you serious? Wow. What if they provided care for the lady?

PS       Well, then you’ve got the section…the provision to make a claim on the Estate. You can still make a Family Provision Act claim on an intestate Estate.

Luke    The question I suppose is that, look, I assume, because I’m in the media and I hear it mentioned all the time, that most people have a Will but here’s proof positive that if we needed it, the very important reason why you should get to decide who and by what manner gets your Estate.

PS       Definitely Luke and that’s why Turner Freeman are offering 2GB listeners today a free Will service. What you’d need to do is call our 1800 800 088 number by 3 o’clock today, register your interest, we’ll ring you back and get the details and we’re providing free Wills because it…exactly in that scenario. I mean, the consequences of not having a Will are anyone’s guess.

Luke    Yes, yeah exactly right. Well this woman was at home for 8 years dead before anyone noticed.

PS       That’d be an interesting claim that one, or an interesting Estate.

Luke    It would be?

PS       Yes.

Luke    Ok.

PS       Because then you’ve got the question of cousins who have died in between. So where does their share go? You see, your Will…

Luke    Gee…what in between the 8 years that had passed and the discovery of her death?

PS       Yes…because your Will or your intestacy applies as at the date of death so those cousins that were alive as at the date of death’s share. Now if they’ve passed on, you have to then enquire/research/find…who are they? And it can go on and on and on.

Luke    131873 if you want to put a question to Paul. We’re happy to help you out there. Look, I should tell you, since its beginnings back in 1951, Turner Freeman Lawyers has fought and won some of the biggest cases in Australian legal history, cases that have affected everyday people just like you and just like me. Now, if you haven’t got a Will or your current Will needs updating, Turner Freeman is offering 2GB listeners, as Paul just mentioned, a free Will service. You just call Turner Freeman Lawyers before 3 o’clock to register for your free Will. The free offer covers the types of Wills that 99% of people would make and excludes Testamentary Trusts. Did I say that right?

PS       Yeah Testamentary Trusts.

Luke    Testamentary Trusts. Call 1800 800 088 before 3pm to register for your free Will. Don’t let your finances and family suffer. Call 1800 800 088 or visit them on the Web: Turner Freeman Lawyers, great people, great results, great value. That is an unbelievable offer for 2GB listeners. Let’s get to John on line 2 for you Paul. G’day John.

C1       Yeah, g’day.

Luke    G’day.  What was your question mate?

C1       I’m from the UK. I’ve lived here for about 25 years and due to a family dispute, our siblings don’t talk to each other, my brothers and sisters and I believe my Mum is close to death and I just wondered and I haven’t got any contact details for her. I just wondered if, by law, they’re required to tell me if she dies.

PS       Now, does your Mum live here or in the UK?

C1       No, all my family are in the UK.

PS       I can’t help you mate, I don’t know what the law is in the UK. Now, in here, they don’t have to tell you.  You are entitled to a copy of any Will and an Executor is obliged to provide that to you. As far as being advised, there’s no obligation, in law that I’m aware of, that they have to advise you. So that if she had made a Will and not provided for you, it is quite possible that a Will could be completed without you knowing anything about it.

C1       Oh, ok.

Luke    Alright mate, sorry John, sorry we can’t help you but maybe there’s something in that information and good luck with everything mate. Patricia’s next in Mosman.

C2       Oh, good afternoon.

Luke    Afternoon.

C2       What is the difference, if there is a difference, between tenants in common and joint tenants?

PS       Very good question.  Let’s say you own a property. You can own it as joint tenants or tenants in common. Joint tenants, if it’s a husband and wife, means that when one dies, his or her share automatically goes to the other party. Full stop. So, if your Will provides that everything I have when I die goes to the RSPCA, for example.  That share in that property, doesn’t. It goes to the survivor. Tenants in common is a different story. Tenants in common, you own it in certain shares. Usually, tenants in common in equal shares let’s say. So that means, each of you owns a half and you can devise that half how you wish in your Will. It will not automatically pass to the survivor.

C2       Well, I tell you what’s happened, my husband who actually was a lawyer, has not made a Will.  We can’t find a Will for him and he’s had to be put…

PS       He should have phoned Turner Freeman.

C2       Oh well he had his own practice and that just shows you how the butcher’s kids don’t have meat.

Luke    Yeah that’s right, yeah.

PS       Fair enough.

C2       But this unit in which I am, is in both our names. Everything comes here, all the bills, everything, to him and to me and I’m worried sick that if anything…if I die first, my share will go to him, whereas I want everything to go to the two boys.

PS       Now, look, it’s very easy to fix. If you want to contact us, by all means, we can fix that up.  We can do a title search, we can find out very simply how the ownership is. Even if it is joint tenants and you want to sever that tenancy, it’s very easy. And, therefore…

C2       And what’s your phone number?

Luke    Well, I tell you what we’ll do. I’ll put you through to Leigh, who’ll take the call back and she will, off air, give you that telephone number. So we’ll put you back on hold.

C2       Thank you so much.

Luke    It’s a pleasure Patricia, I hope that you get some help and that we can sort that all out for you. Thank you for your call. Bruce is next in Canberra, Bruce?

C3       Good afternoon guys, how you going?

Luke    Good thank you, go ahead mate.

C3       Just a very quick call, a question. My mother recently passed only a couple of months ago.  Now, she had a Will and my sister and I were the two surviving siblings. Now, my other siblings had passed but her bond from her nursing home was paid back to St George Bank.  Now, they wanted us, my sister and I, to sign stat. decs that neither of us are going to, I suppose…I’ve already got my share of what was left of the Estate but I had to sign a stat. dec. saying that I will not contest the Will. But now they want us to sign…get other paperwork for my sister’s children and my brother who’s passed, his children as well…sign stat. decs. that they won’t contest the Will. Even though, in her Will, she has said, the money is to go to my sister and I.

PS       You’ve confused me a bit. I’m assuming that she left a Will and the amount in the bank is not high enough for the bank to require a grant of probate.

C3       That’s right, yeah.

PS       So what they then want are indemnities. It’s not a question of whether you’re going to contest the Will or not, what they usually require is an indemnity so that if someone does make a claim and say…I’m entitled to the Estate and then claims against the bank because the bank’s paid the money to you and your sister, you’re going to repay the bank. That’s what that’s usually all about.

C3       Right, ok, so if…with these children signing the stat. dec…like, my brother’s children…as I said, my brother passed years ago…that’s basically covering the bank so that they don’t…

PS       Correct, correct.

C3       Ahhh.

Luke    Alright Bruce, we’ll leave it there.  We’ve got other callers to get to which we’ll do after this. It’s Legal Matters thanks to Turner Freeman. Paul Sant with us today talking Wills and Estates on the open line, number 131873.  Don’t forget their amazing offer today. You’ve got to contact them by 3pm. If you haven’t got a Will or your current Will needs updating, Turner Freeman will help you out for nix but you’ve got to call by 3pm to register for your free Will. This offer, it covers the types of Wills that 99% of people would make. It does exclude Testamentary Trusts 1800 800 088.

Here with Paul Sant from Turner Freeman. We’ve had lots of people say we weren’t able to get through on the Turner Freeman number and we understand it is busy. Just be persistent. Keep trying 1800 800 088. That offer is free Will services, got to register before 3 o’clock today. 1800 800 088 and the Wills that are covered do, in fact, themselves, cover 99% of people and, of course, excludes Testamentary Trusts. 131873 the open line number, let’s get back to callers for Paul. Margaret on the Central Coast, hi.

C4       Hi, how are you?

Luke    We’re well.

PS       Well thank you.

C4       That’s good. Look, my husband and myself have a Will. It’s made out, if anything happens to either of us, it goes to the other partner but someone was telling me, because I have a daughter from a previous marriage that he’s not the father of, can she claim my part of the Estate?

PS       This is his…?

C4       My daughter.

PS       Your daughter from earlier relationship.

C4       And if anything happens, can she claim that part of my section of it?

PS       She can.

C4       She can?

PS       She can make a claim. Whether she will succeed or not is a different issue. The potential claimants under a Family Provision Act include a child of the deceased. Therefore, she would fall within that group, then she would need to show a number of factors to convince a Judge that provision should be made for her. However, most decisions that I’m aware of favour the spouse.

C4       Right.

PS       And it is difficult for children to defeat a spouses claim. Depending, very much, on the size of the Estate.

C4       Right, is it possible to put a section into the Will that my husband can’t be put out of the house, that he can always remain in that house?

PS       A Judge can make any provision he or she wishes out of an Estate. You could put it in the Will but whether it will be upheld is another issue.

Luke    Margaret, got to leave it there because I want to fit everyone in but thank you so much for your call. Good luck. On line 2, Margaret, hi.

C5       Yes, hi Luke. Look, my mother’s Will, the original copy, has been misplaced by the solicitors. So, where do we proceed from there?

PS       Do you have any other evidence of that Will? Do you have a copy of a signed Will?

C5       We have a copy of a signed Will, yes. But, as far as goes applying for probate, apparently they need the original?

PS       There has been substantial amendments made to the Act where you can apply for probate if you don’t have the original signed document. You can apply for probate on a document which evidences the Testators intentions but there has to be all sorts of additional evidence provided…because the question is, if there is no original Will, did the Testator destroy that Will?  You know, did they revoke it? So there’s a lot of evidence that is required. But you can apply, in certain cases, if you don’t have a document which fits in as an original Will.

Luke    Alright, we better leave it there Margaret, thanks for your call. Mark, quickly, at Cronulla.  I’ve only left you a minute, mate, go hard.

C6       Yeah, I’m just querying the one year limitation. My father died and left everything to his second wife in Queensland so I’ve got the Queensland/NSW thing going on as well. I let that year lapse because I was in such a shock over it all. Have I got any come-back after the one year limitation?

PS       There is discretion to the Courts to allow an application after the one year period.

Luke    There is discretion?

PS       There is discretion.

Luke    Alright Mark, there you are, hopefully some light at the end of that tunnel. Sorry you’re going through all that mate, thanks for your call. And Paul, thank you for coming in.

PS       Thanks Luke.

Luke    Wow, lots of great calls today.

PS       Good to see you again.

Luke    Good to see you too mate and, again, the number for Turner Freeman,, but it’s 1800 800 088. A free Will service.  If your Will needs updating or you haven’t got one to 2GB listeners. You’ve got to register by 3 o’clock today. The free offer covers the types of Wills that 99% of people would make. Call 1800 800 088 before 3pm to register for your free Will. Paul, thank you.

PS       Thank you.

Luke    See you next time around and Chris with another segment on law with Turner Freeman, our good mates at Turner Freeman in a week’s time.

Contact Us

Latest News and Blog

Work Capacity Assessments and Decisions

Work Capacity Assessments can be conducted by the insurer and may affect your entitlement to weekly payments.Read More

Effect of Marriage on Estate Planning: Part 2 – Enduring Guardians

Why you must update your will if your circumstances change.Read More