Succession on Intestacy – who will get a piece of your pie?

Succession on Intestacy – who will get a piece of your pie?

About Jane CollisJane Collis

Jane Collis is a member of the property and private client practice group, specializing in estate planning, wills, international and domestic trusts and probate.

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While most people prefer to leave nothing in life to chance, there are many who don’t get around to making a Will, for one reason or another. Life is busy after all and planning for death is surely to tempt fate in the wrong direction. Those who are married often make the assumption that the surviving spouse will take everything, in all circumstances. Sadly, this is not the case.

Matters of succession on intestacy are governed by the Non-Contentious Probate Rules 1974 and the Succession Act 1974. The Non-Contentious Probate Rules 1974 establish the order of priority for taking a grant of letters of administration when a person (called the “intestate”) dies without a Will (called “intestacy”). The relevant order of priority is the surviving spouse, then the children of the intestate or the issue (child, grandchild etc.) of a child of the intestate who has died during the intestate’s lifetime, followed by parents through brothers and sisters (whole blood, followed by half blood) and their issue, grandparents, uncles and aunts and so on.

The Succession Act 1974 establishes the priority as to beneficial interests in an intestate’s estate. If the intestate leaves only a spouse, the spouse takes the residuary estate absolutely, and if the deceased leaves only issue, they will take the residuary estate between them in equal shares, with the children of any deceased child of the intestate dividing their deceased parent’s share equally between them (this is known as a division per stirpes– where each branch of the family receives an equal share of an estate). After these scenarios, however, things get more surprising.

If the intestate leaves a spouse and issue, the spouse will take the personal chattels absolutely, and, in addition, a sum equal to half of the value of the residuary estate or $100,000, whichever is greater, and the balance of the residuary estate will be held for the deceased’s issue per stirpes. This is not so, bad, except, potentially, in a situation where the children are very young and the spouse could more purposefully use those funds stuck in trust for the children.

Far worse is the situation where the deceased leaves a spouse and any one or more of a parent, brother or sister, nieces and nephews, grandparents etc. but no issue. In this case the surviving spouse will take the personal chattels and a sum equal to two-thirds of the value of the residuary estate or $150,000, whichever is the greater and the intestate’s parent(s) or siblings, or nieces and nephews, as the case may be, will share the remaining third of the estate. This can come as quite a surprise to the surviving spouse. It should be noted that in each scenario, the surviving spouse can require the personal representatives of the estate to appropriate the marital home toward the spouse’s share of the estate, assuming the estate is of sufficient value, which is some comfort.

In the absence of a spouse or issue the order of priority for benefit is parents, siblings (whole blood or their issue, then half blood or their issue), grandparents, uncles and aunts (whole blood or their issue, then half blood or their issue) and if no blood relative can be found, the crown will take the estate.

Some relief is available in the Succession Act 1974, which provides that a spouse, former spouse (who has not remarried), child or grandchild (who was being maintained in whole or in part by the deceased) may make application for financial provision out of the deceased’s estate, either in circumstances where there is a Will and a spouse or child has been left out or inadequately provided for, or where the intestacy trusts discussed above are inadequate for the applicant’s needs. The court will have regard to the financial resources and needs of the applicant and all other relevant circumstances in reaching a decision.

If it is your intention to benefit your spouse to the fullest extent possible, you need to say so in a Will. And if you are one of the many who live with someone, but are not married or have children you consider your own who are not legally yours, there is no way to benefit them without a Will. The law of succession will not recognise co-habitees or their children.

Why leave your estate planning to chance, when you can so easily take control?