On 8th September 2022, Buckingham Palace announced that "the Queen died this afternoon at the age of 96 at her Balmoral residence". Queen Elizabeth II reigned for 70 years, making her the longest reigning monarch in British history. According to the 2022 Rich List published by British media, The Sunday Times, the Queen's net assets is worth £370 million, an increase of £5 million  from last year. For legal reasons, as the deceased monarch is a source of legal authority, her will is not published. However, many of the Queen's possessions, such as the palace, Crown jewels and works of art, are not private property and shall pass down from generation to generation to another monarch.

Although we, as ordinary people, do not have a Crown to inherit, we may still have some assets that we wish to pass onto the person that we care about. Who is going to inherit my estate if I die without a will? What is the succession law in Australia?

Here is an interesting story. Mr. W met Ms.A in 2010 when he first arrived in Australia. He quickly fell in love with her. They got married in 2012 and had a son, Q.

Although Mr. W loved his son, Q, his did not get along well with Ms. A. They had a lot arguments and the relationship eventually broke down and separated on a final basis in 2016.

They agreed to enter into a binding financial agreement and then to file a divorce application. However, since Mr. W was busy, they did not get a chance to sign the financial documents nor file the divorce application.

In 2018, Mr. W met Ms. B through a friend, and they moved to live together that year and commenced a de facto relationship (de facto relationship).

In 2022, Mr. W died in a car accident during a business trip without leaving any will. Ms. A and their son Q and Ms. B all wish to claim for Mr. W's estate.

How should the estate be distributed? Even though Mr. W and Ms. A were separated, they had never obtained a divorce order and a divorce certificate. Under Australian law, Ms. A was still a spouse of Mr W at the time of his death. Since Ms. B was in a de facto relationship with Mr W, she was also a spouse of Mr. W at the time of his death.

Pursuant to Succession Act 2006 (NSW), Ms. A and Ms. B will share the whole estate of Mr. W's, awhile Q  does not entitled to any of Mr W’s estate.

Section 126 of the Act states that: “If an intestate leaves more than one spouse and issue who are all issue of one or more of the surviving spouses, the spouses are entitled to the whole of the intestate estate in shares determined in accordance with this Division”.

The law contininues to explain how the property is to be shared between the spouses:—

(1)  in accordance with a written agreement between the spouses (a distribution agreement), or

(2)  in accordance with an order of the Court (a distribution order), or

(3)  Under the following conditions —in equal shares.

(a)  the personal representative has given each spouse a notice in writing stating that the personal representative may distribute the property equally between the spouses unless, within 3 months after the date of the notice—

1. they enter into a distribution agreement and submit the agreement to the personal representative, or

2. at least one of the spouses applies to the Court for a distribution order,

(b)  at least 3 months have elapsed since the giving of the notices and—

1. the personal representative has not received a distribution agreement or notice of an application for a distribution order, or

2. an application for a distribution order has been made but the application has been dismissed or discontinued.

It is worth noting that Australia is a country that recognises the existence of multiple spouses, not only the married spouse of the deceased has the right to inherit, but the de facto spouses can also claim their entitlement to the estate under the law. Children, on the other hand, are not in the first class of inheritance and are quite often unable to inherit any estate. If Mr. W wants his assets to be inherited by his son Q, then he must create a will to protect him.

Therefore, you should not hold a prejudicial attitude against wills or regard wills as a representation of misfortune. Many people have never given much thought to ensure their beloved family members can live happily when they are gone by way of a will. We should create an estate plan, especially after a break down of a relationship or divorce, to ensure our assets and decisions are taken out of the hands of the former spouse and the former spouse’s family. A will is a legal document sets out who shall inherit your estate, care for your children, and be the executor of your estate when you pass away.. You may also appoint someone to hold and invest the proceeds of your estate in trust for your children until they are reach certain age  and pay for their accommodation, education, health care, medical bills, clothing, etc..

If you have more questions about wills and estate, feel free to speak with one of our solicitors at Longton Legal.

*Disclaimer: This is intended as general information only and not to be construed as legal advice. The above information is subject to changes over time. You should always seek professional advice before taking any course of action. *