On 21 July 2012, 21 year old Ben Catanzariti was killed in a workplace accident on a construction site in Kingston. One year on, Ben’s parents have remembered his death with a memorial and by launching a campaign to raise awareness in young Australians of the need to have a Will. Mrs Catanzariti has created a Facebook page “When there’s a Will, it’s YOUR way” and enlisted the help of Australian sports and media personalities and the ACTU to encourage teenagers approaching 18 years of age not to delay making a Will. Ben’s death is a reminder that tragedy can strike anyone and, unless properly prepared, there is a potential legal mess for the family.
The rules of intestacy dictate how a person’s estate must be distributed in the event that the person dies without a Will. While the rules are a necessary default to fill a gap where a person leaves no Will, they often have unexpected or undesirable results.
The rules of intestacy vary between each State and Territory; however, one common feature in all jurisdictions is that a deceased person’s spouse will receive some level of benefit from the estate. The definition of a spouse is either the husband or wife of the deceased person or a de facto partner at the time of death, provided that the relationship was continuous for at least two years or resulted in the birth of a child.
The issue of when a de facto relationship exists is complex, but people can find themselves in a de facto relationship without intending to. Disputes can arise between a putative de facto partner and other family members who disagree about whether a de facto relationship existed or when that relationship commenced.
Problems can also arise at the end of relationships. For married couples, only divorce and not separation or a finalised property settlement, will impact on the operation of the rules of intestacy. If a deceased person was separated from their husband or wife, but not yet divorced, the separated spouse still stands to benefit.
Many couples intend that the whole of their estate will pass to their surviving spouse, but according to the rules of intestacy in the ACT, if a deceased person is survived by both a spouse and children, the estate is divided between them. This could come as a shock to many young families where a surviving spouse would need access to all available funds to enable them to make ends meet. The requirement to partition off some of the estate on trust for minor children would place a substantial financial burden on the family.
In the event that a person is not survived by a spouse or any children, then their estate is to be divided equally between their surviving parents. This can have a bitter result if the deceased person was estranged from one or both of their parents. It is possible that a parent who has had no active role in raising their child could still stand to benefit under the rules of intestacy.
Many young people believe that they have no assets to worry about but with guaranteed superannuation contributions and life insurance increasingly being offered as a default within super, the death of a young person can often result in a significant payout to their estate.
The rules of intestacy are strictly applied and there is no discretion to vary the distribution to take into account the unique circumstances of each case. Although it can be confronting to consider one’s own mortality, a failure to plan for it can have disastrous consequences for your family. It is well worth the time and effort to record your wishes in a legally valid Will to ensure your estate passes as you intend.
Dobinson Davey Clifford Simpson can guide you through the process of creating a Will to ensure your estate will pass according to your wishes.
Rebecca Tetlow is a Wills and Estate Planning Lawyer at Dobinson Davey Clifford Simpson Family Law Specialists, 18 Kendall Lane, New Acton, Canberra ACT 2601 and can be contacted on (02) 6212 7600.