The Succession Amendment (Intestacy) Act (NSW) will commence on 1 March 2010 and will simplify the asset distribution process when a person dies without a will.

As a general rule previously intestate estate distribution is firstly to the immediate family, the spouse and children; then in their absence to a various next of kin and finally in the event that there is no next of kin to the State.

To keep with “modern” times there are new definitions. Intestate is now actually defined as someone who dies without a Will or leaves a will but does not dispose effectively of all or part of the property. A spouse is definer as someone who is married to the intestate or had a “domestic partnership” with the intestate, immediately before death. A domestic partnership is a de facto relationship that has existed for two years or has resulted in the birth of a child.

Where there is a surviving spouse and issue of children from the relationship with that spouse, the spouse will be entitled to the whole of the estate. Currently the spouse is entitled to the whole of the estate of a deceased individual if the value of the estate, excluding household chattels, does not exceed $200,000. However, if the value of the deceased’s estate, excluding household chattels, exceeds $200,000, the estate of the deceased will be distributed between the deceased’s spouse and their children.

If there are children from a previous relationship the spouse is entitled to the personal effects, a statutory legacy (to be $350,000 and indexed with the CPI) and then shares the balance with those children.

There are also provisions for multiple spouses. A quite regular occurrence now when someone has not formally divorced but may be in a new de facto relationship. The Act provides for property to be shared between those surviving spouses in accordance with a written agreement—a distribution agreement—or in accordance with a court order—a distribution order. A safe bet that there will be more orders than agreements!!

Currently the law distinguishes between relatives of the whole blood and half blood when there is no spouse, issue or parents. Also there is currently no provision for cousins. There is now no distinction between whole and half blood and cousins can take if there are no other next of kin.

There is a now also a definition of “Indigenous person” that defines such a person to be of Aboriginal or Torres Strait Islander descent. This change recognises that it may be inappropriate to apply the general intestacy rules to Indigenous persons, who may have a broader concept of family relationships. There is provision for the Court, on application by an appropriate person, to make a distribution order under the laws, customs, traditions and practices of the Indigenous person. If no such application is made, the estate of the Indigenous person will be distributed in accordance with the general intestacy rules.

Finally the estate could still go to the State, but the State will have discretion to waive the State’s rights in whole or in part in favour of a wider range of claimants which now include an organisation for whom the intestate might reasonably be expected to have made provision. I cannot imagine the current government waiving any right to free money!!

Have You Got Enough Gas?

This may sound like a strange question to ask a taxi driver when setting out on your journey….some readers from the recent conference may recall my story… On a Sunny Sunday afternoon after landing at Auckland and hailing a cab to Waipuna, I neglected to ask that seemingly innocent question. Within sight of the road that the Conference Centre was apparently on at about 5pm we stopped in the middle of the road and could not start again. As I waited for the driver, whose English was not the best and was not a native of any kind to New Zealand, to radio or phone for a new cab…and waited….and waited, it became apparent that maybe I should walk. I could see the right street so I loaded belongings, brochures, pens, conference stand etc and started walking. I got to the street after 20 minutes only to find the hotel was another 1km or so down that street. Arriving about 6pm at the hotel I was politely asked by the concierge if I needed help with my bags (I think he was concerned with my sweating and reddish complexion)…I politely advised him that I thought I could make it from there!!

Thank you to all at the conference (and a few in Wellington) for your wonderful hospitality and especially to the Executive Committee for allowing me to be part of a great conference.

PUBLICATION: ENVOY – The newsletter of The New Zealand Institute of Legal Executives
DATE: December 2009
AUTHOR: Andrew Johnstone, APEARS, Sydney, Australia

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