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Articles
Be Sure to leave a Will
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Be Sure to leave a Will
An Intestate Estate is even more Risky under new provisions ( Victoria only?)

The Statute Law Amendment (Relationships) Act 2001 will come into effect soon. This Act significantly amends the Administration and Probate Act by altering the order of distribution where a person dies intestate (i.e. without a valid will).  ( We expect this probably applies in Victoria only but will research further)

The amendments address the discriminatory treatment of defacto partners of persons who die intestate. Under the present statutory scheme of distribution that applies where a person dies without a Will, defacto partners do not receive any distribution from their deceased partner?s estate. The estate is instead distributed to the deceased?s spouse, and/or nearest next of kin in accordance with a statutory formula.

However, the amendments will introduce a degree of uncertainty and potential litigation that previously did not exist. The amendments may also in certain circumstances create inequitable outcomes.

A key aspect of the amendments to the statutory scheme of distribution is the replacement of ?spouse? with ?partner?. ?Partner? is defined to include a spouse and a ?domestic partner?.

The act defines ?domestic partner? to be either someone who was living with the deceased at the time of his or her death ??as a couple on a genuine domestic basis?? for a continuous period of two years prior to the deceased?s death; or someone who was living with the deceased at the time of his or her death,??.as a couple on a genuine domestic basis?? irrespective of the time involved, provided they are a ?parent? of the deceased?s child and that child is under the age of 18 years at the time of deceased?s death.

?Parent? is defined to include a domestic partner who has ??day to day care and control of the child and with whom the child is ordinarily resident...?  This definition of a partner would appear to open the door to claims for distribution from short term domestic partners at the expense of the deceased?s children. It is also not clear whether a person still qualifies as a ?domestic partner? if he or she no longer acts as a ?parent? after the partner?s death.

The act also contemplates the co-existence of a spouse and a domestic partner and provides for an apportionment of the share that presently is distributed to the spouse. The act does not, however, contemplate the existence of more than one domestic partner, nor does it provide for an apportionment between two domestic partners.

The uncertainty present in the definition of ?domestic partner? may delay the Grant of Probate and the grant of letters of administration (i.e. Permission to take control of the property of the deceased). The Registrar of Probate may refer such applications to the Court.
This will greatly add to the cost of administering the estate of a person who dies without a Will.

These amendments reinforce the message that everyone should have a current Will in order that their Estate is distributed in accordance with their wishes.  We can help with our skills as financial planners (this is our Protax role).

  


23rd-December-2001