When a person dies without a Will, the deceased is said to have died “intestacy”. As the deceased did not make a will and choose the beneficiaries of the estate, the beneficiaries are determined by law. A beneficiary of the estate is entitled to apply to the Supreme Court for a “grant of letters of administration” and to be appointed the administrator of the estate.

When the letters of administration are issued, the assets of the deceased are vested in the administrator. This gives the administrator the authority to collect the assets of the deceased for distribution to the beneficiaries.

Section 14 of the Administration Act 1903 (WA) sets out the entitlements of family members in intestate estates.

When applying for a grant of letters of administration, the intended administrator should take the following steps:-

1. Search for a Will of the deceased as the Court will not issue a grant of letters of administration unless the intended administrator shows that a thorough search had been carried out but no Will had been found. Make enquiries with family members and with the deceased’s financial planner, solicitor or accountant to find out if a Will exists.

He was not my mum’s de facto partner; he slept on the couch! Indicators to determine whether parties are in a de facto relationship in estate disputes.

More middle-aged and older Australians re-partner in later life, setting up increasing disputes between the children of an earlier relationship and the de facto partner as each battle for a share of the deceased partner’s estate.

In a deceased estate matter in the Supreme Court of Western Australia, the children of the deceased and the de facto partner were locked in dispute. The de facto partner alleged he was in a de facto relationship with the deceased and entitled to make a claim against the deceased estate. The children disputed this claim. During the hearing, the claimant alleged he shared a bedroom with the deceased while a witness alleged that he had slept on the couch. The Supreme Court rejected the witness’s evidence stating that the claimant would not have slept on a couch in the deceased’s home for 13 years when he had his own property. Sleeping and living arrangements form one but not the sole determinative factor in determining whether the parties were in a de facto relationship.

De Facto Partners and Claims to a Deceased Estate

We will explore the criteria to determine a de facto relationship but first, note that whether parties were in a de facto relationship is important for 2 reasons: –

I have been waiting ages for my share of the estate.  How long does an executor have to settle an estate in Australia?

The law does not fix a determinate time by which an executor of a deceased estate must distribute the estate to the beneficiaries, failing which the executor will be in breach of his or her duty and face damages or penalties.

There is however a general principle under the common law that the executor ought to complete the administration of the estate within a year of the deceased’s death. This is referred to as the “executor’s year”. It is not a hard and fast rule. If the executor has taken more than a year to distribute the estate, the question is whether the executor has unreasonably delayed the administration of the estate. To determine this, all the circumstances of the case must be considered.

The executor’s year is a guide with the overriding principle being that the executor must not have caused unwarranted delay in the administration of the deceased’s estate.

Before an estate can be distributed, there are many steps for the executor to take which will impact on the time required to complete the administration of the estate, including the following: –

• Issuance of the death certificate;
• Obtaining the original will of deceased.
• Determining the nature and value of the assets and liabilities of the deceased.
• Applying to the Supreme Court for the Grant of Probate to be issued.
• Once probate has been issued, the executor has the power to collect the assets of the deceased such as bank deposits, the refundable accommodation deposit (if the deceased was in aged care) )and investments. The executor also has the power to sell property, stocks and shares and any other asset of the deceased.
• When the deceased’s assets have been collected, the executor must pay the creditors of the estate such as funeral expenses, outstanding loans, and other debts of the deceased.
• Tax returns must be prepared and filed with the Australian Taxation Office relating to the deceased and the estate and such taxes, if any must be paid.
• It may also be prudent to place a notice in the newspapers advising of the death of the deceased and calling for creditors to lodge their claims with the executor within 28 days. This time period must be completed to determine whether there are any debts to be paid.
• The executor is then in a position to commence distribution of the estate to the beneficiaries.

A snapshot of family provision claims and the court’s power to alter the will made by the deceased

We sometimes read or hear of court cases where the court has allowed a claim made by a family member who has been left out of the last will made by the deceased. What does this mean? How is it possible that the court can interfere with the wishes of the deceased and alter the terms of the will? Who can challenge the will and make a claim for a share of the estate?

Normally, the court will not alter the gifts or terms of the will by the deceased. However, in all Australian states and territories, pursuant to legislation passed by parliament, the court has the power to alter the terms of the will and award a share of the estate to a family member who has been left out of the will. The court can also increase the share made to a family member under the will.  The court’s power to alter the terms of the will is however limited to claims made by only certain family members and only to circumstances where the deceased had failed to make provision for that family member’s future well-being. This type of claim is often referred to as a family provision claim.

The first step is an objective criterion. Does the claimant fall within the category of person entitled to make a family provision claim? In Western Australia, under section 7 of the Family Provision Act 1972 (WA), only the following persons are entitled to make this claim: –

What cheek! My brother has not spoken to our mum for 15 years and he now wants a share of her estate. Estrangement and the law on family provision.

It is a cultural tradition that parents leave their assets to their children upon their passing. At the same time, there is a strong community expectation that parents should retain the right not to leave their assets to children who are estranged from them.

The law seeks to resolve these countervailing expectations in a fair and just manner in relation to claims made by children who were estranged from their deceased parent and have been left out of the will.

“Estrangement” describes the condition where two parties are no longer in a friendly or affectionate relationship as a result of the attitudes or conduct of one or both parties.

There is no rule of law that a child is not entitled to make a claim for provision if he, or she, has been estranged from the deceased parent. However, under Section 6(3) of the Family Provision Act 1972, the Court may refuse to make an order for provision out of a deceased estate in favour of any person on the ground that his character or conduct is such as in the opinion of the Court to disentitle him to the benefit of an order, or on any other ground which the Court thinks sufficient.

Hence, the question is whether the applicant’s character or conduct leading to and during the estrangement is such that it disentitles the applicant to the benefit of a court order for provision out of the estate. Each case must be assessed on its own facts with the primary consideration being the nature of the estrangement and the underlying reason for it. The following cases illustrate this principle: –