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Written by Christine Vrahas – Estate Litigation Solicitor at Owen Hodge Lawyers



What happens if you never married and never had any children and then died without a Will? That is what happened in the case of RAKOVICH V MARSZALEK [2020] NSWSC 589.

The deceased in this matter died without a Will. The deceased never married and never had any children. As the deceased died without a Will, the operation of the intestacy rules applied, which is what happens when someone dies without a Will. The laws of intestacy meant that the deceased’s nephews and nieces would inherit the deceased’s estate in equal shares.

However, at the time of his death, the individual in question was living with the plaintiff, who was his close friend for over 30 years. Unfortunately, it was accepted that based on the rules of intestacy, that the close friend of the deceased would not receive a share of the estate.

Accordingly, the close friend commenced proceedings for provision out of the deceased’s estate on the basis that he was a person who was, at any particular time, wholly or partly dependent on the individual who passed away, and who was, at that particular time, or at any other time, a member of the household of which the deceased person was a member. 

The Judge accepted that the plaintiff was an eligible person and that he had been left without adequate provision under the rules of intestacy. An order was made whereby the plaintiff received, out of the estate of the deceased, a lump sum, calculated as 45% of the net value of the deceased’s estate for the plaintiff’s proper maintenance and advancement in life.

If the deceased in this case had prepared a Will, these costly court proceedings could have been avoided. 

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