Having a will prepared offers many benefits including giving you and your loved one’s peace of mind that should anything happen to you; your estate will be administered according to your wishes as far as the law permits.
The case of Caitlin Thornton
“Without a will, she was unable to have a funeral without his consent”
The consequences of dying without a valid Will were brought into focus following the tragic passing of Caitlin Thornton in March 2023.
Caitlin died intestate at 21 years of age just days after leaving her then boyfriend. Caitlin’s family said that Caitlin’s boyfriend had been abusive during their relationship. Despite this, Caitlin’s boyfriend became legally responsible for the administration of Caitlin’s estate in accordance with the NSW legislation. Caitlin’s family were left without relief having to wait several weeks before they could even hold a funeral for her.
Caitlin’s case has prompted calls for reforms to the Act, including proposals to allow for the alteration of the hierarchy of entitlement in cases where domestic violence and/or allegations of abuse exist.
Until such reforms are affected, the most reliable protection remains proactive estate planning.
Dying intestate
In New South Wales, when a person dies without a valid Will, they are said to have died intestate. In these circumstances, legislation determines who is eligible and has priority to deal with the estate.
The Succession Act 2006 (NSW) (“the Act”) establishes a hierarchy of eligible relatives who may administer and benefit from the estate. Under the Act, a deceased person’s spouse, including an eligible de facto partner, generally has first priority.
This raises an important question: when someone dies without a valid will, how does the law address cases where there are allegations of family and domestic violence involving the deceased’s next of kin?
The risks of dying intestate in New South Wales
In New South Wales, if you die without a will, your spouse or eligible de facto partner will be entitled to control and administer your estate. This entitlement is generally not altered even where there are allegations of family and domestic violence.
Currently, New South Wales legislation does not empower coroners to appoint an alternative next of kin in cases that involve family and domestic violence, or estrangement.
As a result, where a person dies without a Will while experiencing family and domestic violence or abuse, their abuser may legally become their next of kin. This grants them control over your bank accounts, assets, and even decisions regarding your funeral and the release of your body.
For families of victims of abuse or family and domestic violence, this can lead to distressing circumstances in which important decisions are left in the hands of the very person alleged to have caused harm, often with limited avenues for recourse.
Estate Planning
For individuals experiencing, or planning to leave, an abusive relationship, having appropriate estate planning documents in place can provide an important layer of protection.
A properly drafted Will allows you to:
- Appoint a trusted executor to administer your estate;
- Determine who will receive your assets;
- Reduce uncertainty and potential disputes among family members; and
- Ensure your wishes are clearly documented and legally recognised.
Taking these steps can help safeguard both your intentions and the interests of your loved ones.
Support Services
If you or someone you know is experiencing family or domestic violence, please refer to the contacts listed below for support:
- National Sexual Assault & Domestic Violence Counselling Service | 1800 RESPECT on 1800 737 732 | text 0458 737 732
- Lifeline Australia | 13 11 14
- Women & Girls Emergency Centre, Redfern NSW | (02) 9319 4088
- MensLine Australia | 1300 789 978
How DTL can help
For people in or planning to leave an abusive relationship, having estate planning documents in place can provide some safeguards to your wishes and the interests of your loved ones.
If this article has created concerns for you, contact DTL and speak with our Wills & Estates Team about planning your estate.
Here at DTL, we are committed to assisting our clients in preparing and executing their estate planning documents. We are here to guide you through the process and give you the peace of mind that your estate will be managed in accordance with your wishes and expectations.
