The rule regarding “commorientes” is concerned with determining survivorship where two or more people have died in the same incident. If it cannot be determined who died first, then the younger should be presumed to have outlived the elder. This can lead to confusion over who is to get what of an inheritance.
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Ms Saffioti owns a block of land in Kiama on the southern coast of New South Wales. Except for her existing small dwelling, the rest of the block of land is covered in native vegetation. Her initial development proposal was to build another small dwelling with a garage on another part of the block. The Council did not contest that Ms Saffioti had an existing use right in respect of her existing property but argued that this could not be extended to the entire block because new zoning laws only allowed developments satisfying environmental conservation requirements.
Testamentary freedom is the freedom afforded to a person to decide who they want their property to go to when they die. But this discretion is not unconstrained and may be contestable. Over time, legislation has been introduced allowing a variety of persons to make a claim against the estate of the deceased, commonly referred to as “family provision claims”.
In New South Wales, under the Real Property Act 1900, it is possible to obtain ownership of a property if a person has remained in the property for a minimum of 12 years. In that time, they must have had factual possession and have demonstrated a clear intention to possess the property. Factual possession means physical control over a property. This can include the changing of locks, repairing the property and paying bills.
Important though it is, estate or inheritance planning is more than just having a Will. Planning needs to ensure that your assets are structured effectively so that they can be passed on to your chosen beneficiaries.