A will is a document that explains how a person’s property will be managed and distributed on their death. If a person dies without making a Will there are laws governing who is entitled to benefit from an estate. The estate is distributed amongst a group of family members according to a formula defined in Section 14 of the Administration Act 1903 (WA).

Spouses

When a person dies without a Will (referred to as dying “intestate”), only the first $50,000 of the estate goes to the surviving spouse. The remainder is divided one third to the spouse and the balance to the surviving children. If there are no children the surviving spouse takes the balance of the estate. This can leave the surviving spouse with an awkward situation of a possible conflict with the children or a forced sale of assets.

Estranged spouses

Separated and estranged spouses can also benefit from an estate, even though the deceased person may have been living apart from the spouse for many years. A wife is still a wife even if living apart from her husband provided there is no divorce. This rule can produce some odd results particularly if the separated spouses have already divided their property.

De Facto Relationships

In the case of a de facto partner, if there is no Will, the de facto must have been in a relationship with the deceased for at least two years immediately before the death of the intestate. Section 15 of the Administration Act even provides for a situation where there is both a wife and a de facto. In that case they receive half each. The Act even covers a case where there are two de facto partners. They receive half each.

Children

The term children includes illegitimate children (lawyers refer to them as ex nuptialchildren).

It is common for an illegitimate child to emerge and make a claim. If there is no will, the illegitimate child has equal standing with the other children under the Administration Act. If there is a will the ex nuptial child can only recover what is reasonable, which may or may not be the same as any other children.

The other curious problem with ex nuptial children is establishing they were a child of the deceased. In one recent case Furesh v Shor [2013] WASCA 231 an illegitimate child made a claim on a deceased estate where the deceased left no will.

The estate administrator requested that the claimant undergo a DNA test. The claimant refused. The Court ordered a DNA test. On appeal, the Court of Appeal held that the Court had no power to force a party to have a DNA test.

In the absence of DNA tests there may be some interesting cases coming up on who is a child of the deceased. Having said that, before the days of DNA, we got by usually by resorting to other evidence such as child maintenance records.

No wife, no children

If a person dies leaving no wife or children the estate is divided between brothers and sisters, or if no brothers and sisters the deceased’s parents.

We once dealt with an estate where the deceased had 15 brothers and sisters spread all over the world. Some of them had died leaving children. It was a major effort to track down all of the beneficiaries. Inevitably the estate was split into relatively small amounts for each beneficiary, something that the deceased would not have wanted

Dies leaving no relatives at all

In an extreme case where there are no relatives at all, the estate passes to the State.

Care of minor children

Aside from distributing assets a Will can nominate guardians of children under age 18. A will may also provide for such children’s maintenance, care, support and education. Without a will a whole set of reasonably complex legal steps need to be taken to ensure that children are cared and provided for.

Claims against Estate

What if a person is unhappy with what he or she has received from an Estate? Under Section 7 of the Family Provision Act 1972 specified persons can apply to the Supreme Court for provision out of the estate.

Summary

Wills can be challenged but it is still wise to make a will. The failure to make a will can leave behind some messy legal problems and a big legal bill for your family.