Tragic Case on Intestacy & Order of Deaths

The organisation of a deceased loved one’s affairs can be a very difficult experience. You will likely still be grieving the loss when attempting to concentrate on managing and distributing assets from their estate. This is made all the more complicated when there is no Will (known as dying intestate), and truly tragic where the only parties who would be entitled to inherit under intestacy rules die at around the exact same time.

In the recent case of NSW Trustee and Guardian v State of New South Wales [2015] NSWCA 1121, these very circumstances were played out. It concerned the death of a mother and son – in circumstances that remain unclear – in the home that they shared around 18 September 2005. Both died without having made a Will and without any immediate family to be the beneficiaries to their estate. Their only family who lived nearby was a niece of the mother, while there were unconfirmed reports of relatives living in Egypt. The question of inheritance in such an unusual case was brought before the courts to be determined.

Background to the Case

The son and mother shared a home together in Rooty Hill, NSW. The mother was a widow, and was suffering from illness (some attributable to her advanced age at 94): senile dementia, a stroke and cataracts. Her physical condition was such that she required constant care and assistance to move and to eat. Her son, aged 64, was also in poor health. He was suffering with a glioblastoma multiforme – a malignant brain tumour – that is well known to cause seizures and difficulties with speech. Notwithstanding his considerable health issues, the son was his mother’s full time carer.

In September last year, the bodies of the mother and her son were discovered. The police, following their investigation, confirmed that the mother’s body was located in the living room of the property, with an overturned table lying across it. The son’s body was found in the bathroom, lying in the bath. The authorities could find no reason to suspect that the pair died in suspicious circumstances or any visible sign of violence or some kind of struggle. Unfortunately, the autopsies did little to clarify matters, as the state of decomposition of both bodies made it very difficult to determine more than what the police had uncovered. Ultimately, the police concluded that the son had passed away as a result of a seizure, while his mother died from starvation owing to her inability to feed herself without assistance.

Why the Case Came Before the Courts

Notwithstanding the fact that both a mother and son had passed away in unusual circumstances, their estates still had to be organised and distributed. The difficulty here was that there was no Will to assist the court in determining how the estate was it be organised. Furthermore, the timing of the mother and son’s deaths was unclear. The court was asked to decide on the order of their deaths under ss61A-61F of the Wills, Probate and Administration Act 1898 (NSW) ("WPAA" or "the Act").

The timing of their deaths was important. Given that the son had no relatives who could benefit from his estate (his mothers niece was not listed under the 1989 Act as a possible beneficiary), if the court decided that his mother had passed away before he did, his estate would have been passed to the state of NSW. Therefore, it could not have passed to his mother.

How the Court Made its Decision

The timing of the pair’s deaths was significant. Given that they both died before March 2010, the court was required to use the 1898 Act in deciding the order of deaths. This would have otherwise been the Succession Act 2006.

The court had to pay close attention to the terms of the legislation. Under s.61B of the 1898 Act it was written that:

" ...

(4) If the intestate leaves issue but no spouse, the estate shall be held in statutory trust for the issue of the intestate.

(5) If the intestate leaves no spouse and no issue but one or both of the intestate's parents, the estate shall be held:

...

(b) where only one parent survives the intestate, in trust for that parent absolutely.

 (6) If the intestate leaves no spouse, no issue and no parents, the estate shall be held for the following persons living at the death of the intestate and in the following order and manner:

(a) firstly, in statutory trust for the brothers and sisters of the whole blood of the intestate; but if there are no such brothers or sisters, then

(b) secondly, in statutory trust for the brothers and sisters of the half blood of the intestate; but if there are no such brothers or sisters, then...

...

(7) In default of any person taking an interest under subsections (2) to (6), the estate shall belong to the Crown as bona vacantia, and in place of any right to escheat."

The provisions of the 1898 Act are quite clear: if the son predeceased his mother then his estate would be held in trust for his mother. If his mother died before he did, then her estate would be held in trust for him. The court had to consider the evidence – the little that there was – and also the legal presumption under the 1929 Conveyancing Act that were two people die in circumstances that make it difficult to determine the order of their death, for purposes regarding ownership of property, the deaths are deemed to take place from oldest to youngest i.e. the mother passed away first.

What the Court Decided

While supporting evidence was scant, there was enough to assist the court in a making a decision. The court took the view that on the balance of probabilities there was enough evidence to rule that the son was likely to have passed away before his mother – he was her primary carer and would not have allowed her to starve unless he was physically prevented from doing so. As a result, the court decided that his estate passed to his mother on his death. This, along with he rest of his mother’s estate, then passed to her siblings upon her death. The distribution of this was to be determined by further investigations following the court’s ruling.

While it is true that this case was unusual in its facts, it emphasises the importance of the presence of a Will. Have you considered the heartache and emotional strain your family could suffer if they are forced to endure a court’s investigation into your affairs, in order to realise the distribution of your estate? Furthermore, there is a genuine risk that where there is no Will, the distribution arrived at by the court may be far from what you would otherwise have intended. At Szabo and Associates, Solicitors we can help you to prepare for a time when you are no longer here. Our solicitors are highly experienced in drafting clear, and comprehensive Wills that accurately reflect your intentions for your estate and your family when you pass away. To avoid the risk of losing your estate to a rigid legal process, contact George Szabo today.