Your Inheritance Monthly — May 2025 Edition
This Month’s Question:
“Who Inherits if there is no Will?”
We are often asked what happens if a person dies without a Will.
If a person dies without a valid Will, their estate will be distributed in accordance with the order set out in the relevant legislation.
The order of distribution may be different to what the deceased actually wanted. For example, it may result in an estranged child inheriting the whole estate.
The order of distribution will depend on what State of Australia the deceased lived in and where they own property. For instance, if a person dies without a will in NSW, the whole of their estate will be distributed in the following cascading order:
- Spouse (or de facto of at least 2 years);
- Children – but if any child has predeceased, then to the child’s children (i.e. grandchildren);
- Parents;
- Siblings – but if any sibling has predeceased, then to the sibling’s children (i.e. nieces and nephews);
- Grandparents;
- Uncles and aunts – but if any uncle or aunt has predeceased, then to the uncle or aunt’s children (i.e. cousins); and lastly
- to the State of NSW.
A different order of distribution applies to blended families.
If you have a relative who has died without a Will, or you would like to do a Will, contact us today.
Read more about Dying Without a Will in our blog Dying Without a Will in NSW.
If you have a question about Dying Without a Will, contact us today.
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Recent Notable Estate Plans
One client’s request to deal with 8 different scenarios
In this case, our client approached us to prepare an estate plan for an estate valued at approximately $10m consisting of multiple Sydney properties and an existing Family Trust.
What was unique about this client was that their daughter was contemplating marriage, and the client instructed us to prepare an estate plan that provided satisfactory outcomes in 8 different scenarios, including – if the daughter married; if the daughter married then died; if the daughter married then her spouse died; if the daughter married then divorced.
The client had previously instructed another lawyer to prepare a suitable estate plan, but after 2 years that lawyer was unable to provide what the client needed.
In this instance, we prepared a Will using Schedules, each of which came into effect under specific circumstances. For instance, a schedule that came into effect if the daughter married and remained married when the client died.
The Will was drafted, reviewed and executed within 2-3 weeks of receiving final instructions.
The client was ecstatic with the outcome, given their protracted and unsuccessful experience with their former lawyer.
One client’s request to prepare a “stop-gap” Will for travelling
In this case, our client approached us for estate planning services with a view to disinheriting their estranged children.
We were engaged to advise on options and to prepare an estate plan that would give effect to the client’s wishes.
However, soon after being engaged, the client advised that they were travelling overseas for a month.
As the client did not have a Will at the time, if the client had died while travelling, their estranged children would have inherited a large portion of their estate.
Therefore, the client instructed us to prepare a Will to act as a “stop-gap measure” until such time as the substantive engagement could be completed.
We prepared a Will for same day execution.
The client was able to enjoy their holiday without the cloud of uncertainty hanging over their head in the event of an accident while travelling.
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Recent Australian Decisions
Supreme Court of NSW
The Estate of Arlene Veronica De Leon [2025] NSWSC 529
(26 May 2025)
Deceased died without a Will – siblings entitled to estate – birth records of eldest sibling destroyed in WW2 – Court satisfied the eldest sibling was indeed a sibling
The deceased Arlene Veronica De Leon died without a Will on 13 January 2024. Under intestacy laws, as the deceased did not have a spouse, children, or parents at the date of her death, her estate was to pass to her siblings (or where a sibling had predeceased, the predeceased sibling’s children).
One of the 5 surviving siblings applied for and was granted Letters of Administration.
The eldest sibling had been born in the Philippines in 1937 but there was no documentary evidence available to prove the birth. The administrator made enquiries with the Filipino authorities who advised that all records in relation to the eldest sibling’s birth in 1937 had been destroyed in local battles during WW2.
The administrator approached the Court for orders allowing her to “pass over” the deceased eldest sibling due to the lack of evidence providing siblinghood.
The Court considered the available evidence and statutory presumptions as to parenthood and was satisfied that the eldest sibling was indeed a sibling.
As the eldest sibling had predeceased in 2005, his share passed to his four surviving children.
Supreme Court of Victoria
Lennan v Chao [2025] VSC 220
(30 April 2025)
Unsuccessful claim by “domestic partner” who cared for deceased after terminal cancer diagnoses
The deceased Fay Ping Chao died on 1 July 2022 aged 45.
The deceased left a Will dated 11 March 2022 leaving her estate to her two siblings and a direction that any superannuation paid into the estate be paid to her former partner, Anthony Lennan.
Mr Lennan brought a claim against the estate for further provision on the basis that he was the deceased’s “domestic partner” and had not received adequate provision from the estate.
Although the Court noted there were a number of considerations of significance which may be identified as providing particular support for Mr Lennan’s contention that the deceased’s Will failed to make adequate provision for his proper maintenance and support – including the fact he was the deceased’s domestic partner of more than 3 years, that he had provided case and support to the deceased during her terminal illness, that he was now approaching middle age and did not own property, and there were no competing claims on the estate – the Court ultimately found that its decision is
“not to be undertaken by reference to generalised notions of equity and fairness. Rather, such a conclusion is dependent upon a finding that, from the vantage point of a wise and just testator informed by an appreciation of current community standards, and having regard to the considerations identified in the Act, whether [the deceased] breached her moral duty to [Mr Lennan] by the provision she made for him in the Will.”
The Court dismissed Mr Lennan’s claim.
Supreme Court of Tasmania
Dowling v Ierino [2025] TASSC 27
(1 May 2025)
Will signed by two witnesses in the presence of the deceased, but not in the presence of each other
The deceased Nesta Yolandis Hill died on 7 May 2004.
The deceased left a Will dated 3 September 1993.
On 3 September 1993, the deceased signed the Will in the presence of Witness 1.
Later that day, Witness 2 signed the Will. Witness 2 did not witness the deceased sign the will.
Under the Wills Act 1992 (Tas) a will must be signed by a testator in the presence of two witnesses, both present at the time of the signing. In this case, these requirements were not complied with because Witness 2 was not present at the time of the signing by the deceased.
Upon considering the requirements that must be satisfied before admitting the Will to probate, the Court was satisfied beyond reasonable doubt that the deceased made the purported Will, that the deceased had testamentary capacity at the time of doing the Will, that the Will embodied the testamentary intention of the deceased, and that the deceased intended the purported Will to constitute her Will.
Probate was granted in relation to the Will.
Interestingly, there was no mention as to the cause of the delay given the deceased had died some 21 years earlier.
Muhl v Bailey [2025] TASSC 24
(16 April 2025)
Step child awarded $90,000 in claim against step mother’s estate
The applicant Sandra Muhl brought a claim against the estate of her step mother, Nita Shields.
The claimant, who was born in 1955, was adopted by her mother and father.
The claimant’s mother died in 1980.
In 1982, the claimant’s father married a new spouse, Nita Shields (the “stepmother”).
The claimant’s father died in 2015.
In 2021, the stepmother died leaving no provision to the claimant.
The claimant brought a claim against her stepmother’s estate for further provision.
The Court was satisfied that the claimants was the deceased’s “stepchild” and therefore “child” under the Testators Family Maintenance Act 1912 (Tas).
After weighing the relevant considerations, the Court found that the claimant was left without adequate provision for her proper maintenance and support.
Having regard to all of the relevant circumstances a proper provision was one which left her with a greater buffer against contingencies, gave her increased financial security and a more comfortable lifestyle, and added to her financial reserves to meet any demands which might be more likely in her advancing years, for example ill-health or maintenance of her home.
The Court awarded the stepdaughter $90,000 provision from the estate.
