Contest Without A Will

This situation is called an ‘intestacy’, and you are entitled to what is set out in the ‘intestacy rules’ contained in the Succession Act 2006 (NSW).

In the case of an intestate estate, there are guidelines that dictate how much money is usually allocated to each relative of the deceased, depending on their relationship. Only ‘eligible persons’ are able to receive distributed funds from an intestate estate.

These eligible persons include:

• Spouse or de facto partner of the deceased.
• Children, whether from their current (at time of death) or past relationships.
• Parents.
• Siblings.
• Grandparents.
• Aunts and Uncles.
• Cousins.

If you qualify as one of these people, you may be entitled to a portion of an intestate estate. Below we’ll outline what you can expect to receive.

In New South Wales, a spouse of the deceased is entitled to $506,000 (as of 2022), together with 50% of the remaining estate. If there are children from a previous relationship, they will share the remaining 50% of the estate.

In Victoria, similar rules apply, however in the case of children from a previous relationship, they’ll receive 50% of the remaining balance after $482,000+50% has been given to the spouse of the deceased.

In Queensland, the surviving spouse receives $150,000, with the remaining balance being divided between the spouse and any surviving children, splitting it equally with a single child. Or, in the case of more than one child, the spouse receives ⅓ of the balance, with ⅔ split between the remaining children.

In the Australian Capital Territory, the surviving spouse or children of the deceased are deemed next-of-kin for the estate of the deceased. They will receive the entire amount of the deceased’s estate if the amount is less than $200,000. If the estate is valued at more than $200,000, that amount is transferred to the spouse, with the remainder being divided up equally between the spouse and surviving children.

In South Australia, the deceased’s spouse will receive the entire estate amount, if valued at less than $100,000. If it is valued at more than $100,000, the spouse will receive $100,000, plus all personal property. The remaining amount is then divided up between the remaining children of the deceased.

In the Northern Territory, if the deceased did not have children, then the spouse is entitled to the entire amount of the estate. If the deceased did have children and the amount is valued at less than $350,000, then the spouse will still receive the entire amount. However, if the estate at more than $350,000, the spouse receives that amount, plus a share of what’s left, with the remaining share being divided up between the children of the deceased.

Yes, under section 59(1) of the Succession Act 2006 (NSW), you can contest the amount that you would be awarded under the intestacy rules.

Where there is no Will, instead of ‘probate’, the Supreme Court of New South Wales issues ‘letters of administration’. These allow an ‘administrator’ (who could be the surviving spouse or someone else), to distribute the estate in accordance with the intestacy rules.

Certain eligibility criteria must be met if you wish to contest an intestate estate. Section 57 of the Succession Act of New South Wales sets out the relationship between yourself and the intestate person that you must have and be able to prove you have.

These people are:

• The spouse of the deceased;
• The de facto partner of the deceased (as recognised by law);
• Their child or children;
• Their former spouse;
• A person who was at the time, or at any former time, wholly or partly dependent on them. For example, a friend who may have a permanent disability that was living with the deceased person (for whom the deceased acted as a caretaker, of sorts).
• A grandchild of the deceased or at the time of their death, or at any other time, a member of the household.
• A person who was living in a close personal relationship with them at the time of their death.

How Can I Prove My Eligibility to Contest An Intestate Estate?

Before you begin to contest an intestate estate, you must prove your eligibility to the satisfaction of the Court. The standard for this proof is very high to prevent everyone from claiming against estates that they are not entitled to. You should begin by gathering the following documentation that is applicable to your situation.

Present a certified original, or a certified copy, of a marriage, birth or death certificate.

Present financial documentation that indicates your financial dependence on the deceased person, in the case of a partly or wholly dependent person claiming against an estate.

Present housing documentation such as rent receipts, a lease, or signed letter from the deceased certified that you lived there. This could be used in cases where a house is being contested, certifying that you have lived in the house and would be rendered homeless if the house were to be sold.

A formal registry of your relationship with the deceased and proof that you lived together for more than two years, in the case where you are the de facto partner of the deceased, but were unmarried.

In general, the more information you can provide to strengthen or corroborate your claim, the better. Without this, it is possible (even likely) that a court would dismiss your claim outright due to lack of evidence.

Once we receive your evidence, we’ll review it with you and help you determine which pieces of proof are most likely to support a successful claim. Then, we’ll submit notice to the Court and other parties that you’re staking a claim to the intestate estate.

At AJB Stevens, we understand that dealing with the death of a loved one is difficult. That’s why we handle every case with great care and compassion while working to make sure that your claim is as strong as it can be. If you feel you have a claim to an intestate estate, contact us today.

Yes, similarly to instances where a Will exists, there is a timeline to contest an intestate estate. If you wish to make a claim under the Succession Act 2006, you must bring that claim to a Court within 12 months of the date of death of the deceased. It’s in your best interests to act as quickly as possible to contest an intestate estate. However, there are circumstances under which you can apply for an extension.

• If you were unaware of the death of the deceased.
• If you received incorrect advice from another solicitor concerning the time limit to contest the estate.
• If you were related to the deceased, but were unaware of your relation at the time of death of the deceased.

It’s best to contact us quickly to begin your claim, if you feel as though you could be granted an extension. Extensions can only be granted if the Executor has not already liquidated the Estate. If an intestate estate has been partially liquidated, then the unliquidated can be contested.

Who Can Contest an Intestate Estate?

Intestate estates may only be contested by five groups of people, if the deceased of an intestate estate left behind no children or partner. These are:

• Parents
• Siblings
• Grandparents
• Aunts and Uncles
• Cousins

Unfortunately, adopted children are not able to contest the estates (whether intestate or not) of the biological parents, as they effectively became the children of their adopted parents at the time of the adoption.

What Kinds of Evidence Are Required to Contest an Intestate Estate?

If you wish to contest a intestate estate, you must bring incontrovertible evidence of your relationship to the deceased, in cases where the relationship is not already established and corroborated by others with an interest in the estate.

These documents can include: a marriage, birth or death certificate, or a written and signed attestation from the deceased individual that you are to be entitled to a specific amount of money or a specific asset of theirs, despite the lack of a written and signed Will.

It’s important to note that the amount of money that can be contested will vary by state and territory. In many states, it is only amounts of over $500,000. However, in Queensland, the amount is $150,000. This amount is to save time and money for both the court and plaintiffs to contest wills or intestate estates of small amounts of money.

If you think you may have a case to contest an intestate estate, contact AJB Stevens as soon as possible to begin the process, particularly if more time has passed than the allotted timeline for contesting the estate.

As long as you are (a), an eligible person and (b), you have made the claim that the intestate estate does not provide sufficiently for the “maintenance, education or advancement in life of the eligible person”, the Court may make an order for Family Provision and will take into account the following factors:

•  the relationship between the applicant and the deceased, including the nature and duration of the relationship
• the nature and extent of any obligations the deceased person owed to the applicant, to any other person in respect of whom an application has been made for a family provision order, or to any beneficiary of the estate
• the nature and extent of the deceased person’s estate
• the financial resources (including earning capacity) and financial needs, both present and future, of the applicant
• if the applicant is cohabiting with another person—the financial circumstances of the other person
• any physical, intellectual or mental disability of the applicant
• the age of the applicant
• any contribution (whether financial or otherwise) by the applicant to the estate of the deceased person, or to the welfare of them or their family
• any provision made for the applicant by the deceased person, either during the deceased person’s lifetime, or made from the deceased person’s estate
• any evidence of the intentions of the deceased, including evidence of statements made by the deceased person
• whether the applicant was being maintained by the deceased person before their death
• whether any other person is liable to support the applicant
• the character and conduct of the applicant before and after the date of the death of the deceased
• the conduct of any other person before and after the date of the death of the deceased person
• any relevant Aboriginal or Torres Strait Islander customary law
• any other matter, the Court considers relevant, including matters in existence at the time of the deceased person’s death or at the time the application is being considered.

This depends on a range of factors. If your claim is successful, it is possible that the costs will be paid out of the estate, but it is not guaranteed. For more information on payment for fees, get in touch with us

If your claim is unsuccessful, you may consider appealing that claim to a higher court.

This depends on a lot of factors. It may take between 1-3 years.

No parent should ever have to bury their child. However, there are times when the worst happens and a substantial estate is left over, but no Will. In this case, the law considers an ‘eligible person’ someone who was “at any particular time, wholly or partially dependent” on the deceased.

If you were dependent on your child at any time, you may be entitled to contest the dispersion of the intestate estate to their spouses and children. You may also contest the dispersion if you cohabitated with your child and were dependent on them for an income, wholly or partly.

For example, if you moved back in with your child during the latter years of your life, perhaps after the death of a spouse, or a change in financial or health status, you may be able to claim that you were financially dependent on your child and therefore would be destitute without the income provided by their estate’s assets.

Additionally, you could claim a dependency on your child if they supported with rudimentary household tasks such as cleaning, cooking, or looking after younger siblings, in the absence of a father or other adult in the household that took on these tasks.

Much of the claims one could make for the intestate estate of a child depends on the Court’s interpretation of whether or not provisions should have been made for you, even if not expressed in a written and signed Will. Or the Court’s interpretation of whether your particular circumstances constitute the awarding of a portion of the intestate estate, such as the type of dependencies listed above.

In any case of contesting without a Will, you must provide written proof, or financial documentation that clearly demonstrates the dependency you had on your deceased child, whether that be bank statements, rental receipts (if you were paying them small amounts of rent), receipts for their financial expenditures on aspects of your life, or other documentation that demonstrates your reliance on them for support.

It is worth noting that even if your child didn’t write a Will expressly bequeathing assets or money to you, you are approximately the third person in-line to receive their intestate estate amount, behind their spouse and/or children. However, if there are no children, it is possible that their spouse may receive the entire amount of the estate and you may have a claim to receive some of their share, if the share you’ll receive is inadequate.

If you’ve been struggling with opening up a case concerning a claim you have against the intestate estate of your deceased child, our experienced lawyers can help you work out if your claim is strong enough. Contact AJB Stevens to learn more about how you can claim against a child’s estate, even if there is no Will.

Sometimes, a person dies without leaving a Will. This is known as dying intestate. If you have a family member that dies without a Will, you may be entitled to parts of their Estate.

Why Do People Not Leave Wills Behind?

There are many reasons why an individual may not leave behind a Will. These can include:

• A fear of death or dying, therefore, no preparations are made.
• Premature or sudden death due to an illness, car accident, or any other cause.
• A Will was never created.
• A feeling that the person doesn’t have sufficient assets to justify the creation of a Will.

Australian Law generally resolves intestacy estates by the deceased’s next of kin applying to the Supreme Court for a Grant of Letters of Administration. There is no timeline for applying for this grant, although it is generally advisable to do so within 12 months of the Will maker’s death.

Who is an Intestacy Estate Typically Left To?

If a person dies and has a partner, then the entire estate is left to that person (if the amount is over $500,000). Some may also go to children of that partnership or any other children from previous relationships. In cases where there are children of the deceased, but no partner (or are predeceased by their partner), the estate will be divided equally among those children.

If a person has neither children nor a partner, the Estate is divided equally among the following persons in order:

• Parents
• Siblings
• Grandparents
• Aunts and Uncles
• Cousins

What Are The steps I Should Take to Contest the Estate?

If you are a member of that group of five relatives and wish to contest an Estate on the grounds that inadequate provisions were made for you, given your relationship to the deceased, then AJB Stevens can help you.

To begin, you must gather all appropriate evidence (including written documentation) that demonstrates the desire of the deceased for you to have a certain amount of money, or be left with certain assets. Once you have gathered this documentation, you must also gather documentation demonstrating that you would be disadvantaged if you did not receive your share of the assets being contested.

We would then review this documentation for veracity and strength and let you know if we think you have a winnable case. If so, we’ll apply to the Court stating our intent to challenge the distribution of the Estate and notifying the Executor of the Will and all parties concerned.

Following this, there will be a mediation period before contesting a Will in Court. We aim to reach a settlement agreement with other parties involved before taking the matter to Court.

If you feel you have grounds to contest an Intestate Estate, contact us for a consultation.