The order of death can significantly impact the distribution of estates, as demonstrated in NSW Trustee and Guardian v State of New South Wales [2015]. This case highlights the importance of having a lawyer prepare a will for you and the necessity of regular will updates.
In this case, a mother and son were found dead in their shared home, both without a will. The persons entitled on intestacy would be determined by the sequence of death. The mother was a widow, had not remarried or entered into a defacto relationship since the passing of her late husband. The son was unmarried and there was no record that he had ever had any children.
Depending on the sequence of death, there are two potential outcomes. If the son had died first the entirety of his estate would pass to his mother. From there the assets would be distributed according to the intestacy rules of the Succession Act 2006. Alternatively, if the mother died first her estate would pass to her son and then be distributed in accordance with the intestacy formula.
The court examined circumstantial evidence presented by detectives who found the deceased. The Court heard circumstantial evidence from detectives that had found the deceased. The court also referred to s 35 of the Conveyancing Act, which provides that where two or more people die in circumstances where it is uncertainty in the order of death, then the deaths are presumed to take place in the order of seniority. As such, the younger is assumed to have survived the elder. This only applies where circumstantial evidence cannot be used to establish who died first.
In this case, due to the circumstantial evidence presented, the court found that on the balance of probabilities it had been established that the son had died first. It is always better to have a considered will drafted rather than rely on the intestacy rules to apply. Having a properly drafted will for a wills & estates lawyer can avoid your estate beneficiaries entering into costly estate litigation and disputes.
Contact a will lawyer at Matthews Folbigg on 9635 7966 for advice relating to will disputes or contesting a will.
