Many people find it difficult to talk about dying. No surprise, there. A will, on the other hand, should be easy to talk about because it is a strong and powerful way to keep your choices and intentions alive, especially when the care of minor children is involved. Yet fully 40 percent of adult Australians have no wills and may die intestate. Others have wills that are so badly drafted as to have unintended consequences or no legal effect, at all. The ensuing consequences may bring additional heartache to your survivors, yet this is all so avoidable.  The lawyers at Owen Hodge can help you make a will that is an extension of your life plan. Call us today to schedule a consultation at 1800 770 780 or contact us via email at

What is Intestacy?

Intestacy is a technical term that simply means that someone has died without a legally valid will. A person may die intestate when they have no will, or when a will is legally flawed because it does not dispose of all assets, has not been signed and witnessed, or because it does not reflect the true intentions of the person making the will. This can occur because of fraud, mistake or because that person did not have the ability to understand the meaning of the will at the time that it was signed.  Occasionally, some provisions of a will are upheld, while others are not. Also, even if a will does not comply with the formal requirements of the law it may nevertheless be held to be a valid will if the court is satisfied that the deceased intended that the document constitute his or her will.

What Happens When Someone Dies without a Will or with a Badly Flawed One?

When someone dies intestate, everything he or she owns, with some exceptions, is collected by the administrator of the estate after that administrator is appointed by the Court. The administrator then distributes the assets in the estate (which are usually first converted by the administrator into cash) to beneficiaries  determined by  the law and in proportions determined by the law.
There are several problems with this:
The granting of letters of administration:

  • Obtaining a grant of administration  can be very slow, and even slower when the administrator appointed by the court has to look for scattered or estranged family. During that period, funds may not be available for their intended purpose — to pay a child’s school fees, for example.
  • Each state and territory has its own laws regulating those who stand to inherit on intestacy. Consider the issues that might arise with multiple or de facto spouses, blended families, step children, foster children, the unrelated children of a de facto spouse, and so on. The law can be unimaginative in its understanding of “family.”
  • Intended gifts to non-family friends, colleagues, charities, or for the care of pets may not occur.
  • If there is no family, the funds in the estate will escheat to the state, which is probably not any one’s first choice.
  • Legal costs are usually greater for obtaining a grant  of administration than for obtaining a grant of probate.

When married people own assets, such as real estate or bank accounts, in common, the assumption is often that the asset will just pass to the remaining spouse on the first spouse’s death. That may happen, but what will happen on the surviving spouse’s death? What will happen if both are killed simultaneously, as in a car accident, for example?

What About Families with Small Children?

The simultaneous death of both parents or the death of a surviving parent without a will, can be a nightmare for children under the age of 18.  With properly drafted wills containing  guardianship appointments, parents may choose suitable guardians, set up trusts for minor children and otherwise control the distribution of assets. Without a will, the children’s care may pass to someone unable to care for them or not interested in their welfare.  Parents who are interested in estate planning for young families may visit, which  specifically addresses this topic.

What About a Faulty Will?

Suppose that, for very good reasons, you choose to ignore or make only a small provision for  an obvious child or long-estranged beneficiary or a long-estranged spouse. These are legitimate choices and can be accomplished, but the will must be drafted carefully to withstand a challenge. The challenge  might allege that you did not provide for or sufficiently provide for that beneficiary or the challenge might allege that you had been subject to undue influence or that because of incapacity you were not able to express your true intentions or that the will was fraudulent or forged.  The will may fail for technical reasons having to do with your signature or the way in which it was witnessed.
It is distressing to consider that your final intentions might be thwarted. It is doubly so, when you consider the lasting conflict this may create among those you leave behind. This too, can be avoided with a careful review of your will by an expert estate lawyer.

What Else Can an Estate Lawyer Do For You?

Your will should be only a part of your estate plan. It would be wise to meet with a professional to review other elements, as well, including insurance coverage. This may be a good time to discuss executing a Power of Attorney, a Guardianship Instrument and an Advance Health Directive. What about succession planning for your business? If you have an Self-Managed Superannuation Fund, you should speak with an attorney about the purposes and limits of a Binding Death  Benefit Nomination. Planning is powerful and is not just for those with deep pockets. For many families, in fact, it is an important step in the development of those deep pockets.
Death is inevitable, but chaos is not. Mortal coil or no, you can continue to make good things happen for those whom you love. It may be helpful to think of your will as a way of extending the goals you pursue today. Why would anyone be so careless as to die intestate? Surely not you. To ensure that this does not occur, seek the assistance of an experienced estates lawyer at Owen Hodge Lawyers.  With offices in both Sydney and Hurstville, we are easy to reach by telephone at 1800 770 780 or email.

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