WillsHub at http://willshub.com.au is a legal blog about Australian succession and inheritance law. It seeks to inform in a general way for personal interest only. Please note that legal advice is not given over this website.
WillsHub is owned and published by BHS Legal Pty Limited (BHS Legal), an incorporated legal practice in New South Wales. WillsHub was established by Bronwyn Stead, lawyer and principal of BHS Legal.
Bronwyn is admitted to practice in the Supreme Court of New South Wales and in the High Court of Australia. She was engaged in private practice in a small boutique law firm in Sydney before establishing BHS Legal. She has qualifications in science, law and a masters in health administration from the University of Adelaide, Macquarie University and the University of NSW respectively. Prior to law Bronwyn worked for some years as a medical research scientist in Adelaide, at Flinders Medical Centre, and the Garvan Institue for Medical Research in Sydney.
Australia has a common law legal system. Succession or inheritance law is part of our civil law. Many other areas of the civil law can impact succession law, depending on the particular circumstances. For example property law, family law, corporations law, bankruptcy, and so on, see a list here, together with the various acts of parliament, passed by respective state and territory parliaments. Some general background about succession law in Australia follows:
The sources of succession and inheritance law
Australian succession and inheritance law consists of legislation and the general (common) law, that is cases concerning succession/inheritance disputes brought before and decided by the various courts in each state and territory. The courts which decide such cases are the respective supreme courts.
Australian State and Territory Parliaments have responsibility for making legislation on succession and inheritance matters. Even though their statutory schemes are similar, one from the other, the law is not completely uniform and some detailed differences exist. The reason for this stems from the history and development of succession law in Australia from the time of its inception into Australia from England. While due care and diligence is taken in preparing content, such differences across jurisdictions may or not be referred to. The legislation page contains a list of the most relevant statutes to succession law and information to sources of general law.
Testamentary freedom of choice
Australian succession law allows people freedom to choose who will inherit their property when they die, known in law as ‘testamentary freedom’. However if people leave eligible dependents without adequate provision, family provision legislation in all states and territories permits them to apply to the court (the relevant Supreme Court) for redress.
To secure their choices and wishes people need to document them by making a legally valid will, conforming to the required legal formalities, then to keep it updated as things inevitably change.
When no testamentary choices are made
Australian law does not make it compulsory to make a will, but it is preferable to do so, see why here. Neither does the law prescribe what is known as ‘forced succession’, which exists in those countries with civil and Islamic legal systems.
The government’s statutory rules on intestacy
For those who have not made a will or were unable to, and die without one (they are said to die intestate), state and territory governments have legislation containing legal rules prescribing the procedure for finalising a intestate person’s estate. These intestacy rules set out the order to be followed as to who the intestate’s property, or estate, will be distributed to. Sometimes it turns out that a person’s will may not dispose of their estate completely, as part of their will was found to be invalid at law, causing a partial intestacy. The intestacy rules are applied so that the estate can be finalised. For public policy reasons, the statutory rules on intestacy are a default position for when people exercised their choices and made a will. They were formulated according to general community values. Consequently it is quite likely that the outcome from an intestate distribution may or may not have been as an individual might have wished.
No representation is made that permission is held to practice in every jurisdiction from which this site may be viewed. WillsHub contains information of a general nature only. It is not legal advice and should not be interpreted as such.
© 2012-18 BHS Legal Pty Limited, All Rights Reserved.