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Back to "Estate Planning & Wills Newsletter - November 2015"


Intestate administration and order of deaths: the tragic circumstances in NSW Trustee and Guardian v State of New South Wales [2015] NSWCA 1121

This was a case arising out of the tragic death of both mother and a son who died under unclear circumstances in their shared home on or around 18 September 2005. Both died intestate without immediate family – the only family in Australia being a niece of the mother (cousin of the son), and possible but unconfirmed relatives in Egypt, including siblings of the mother.

Neither the mother nor the son left Wills.

The Court was asked to determine the order of the deaths in relation to the application of the relevant statutory provisions being 61A-61F of the Wills, Probate and Administration Act 1898 (NSW) (“WPAA” or “the Act”). As the son had no relevant beneficiary relatives under the Act (cousins not being a listed beneficiary under Section 61B WPAA), his estate would have gone to the State of New South Wales if it was deemed that his mother had died first and therefore it could not have first passed to her. 


The son and the mother were living together in their home in Rooty Hill NSW. The mother was a widow aged 94 years and affected by senile dementia, a stroke, cataracts, and in a physical condition that required constant personal care including assistance with mobility and feeding. The son was aged 66 and suffering from glioblastoma multiforme (a common and aggressive malignant primary brain tumour) known to cause seizures and speech difficulties. The son was nonetheless the mother’s full time carer under the Centrelink scheme.

The police confirmed that the mother’s body was found in the living area of the home near a wheelchair with a small rolling table overturned and lying across her body. The son’s body was found in the tub of the bathroom. There were no suspicious circumstances or signs of struggle. Whilst the autopsies were inconclusive due to the state of decomposition of the bodies upon their discovery, the police assessment was that the son had died in the bath probably as a result of a seizure and the mother died subsequently upon her inability to feed herself without her son’s assistance.


Since the mother and son died prior to March 2010, the WPAA and not the Succession Act 2006 NSW was the relevant legislation to be applied.

WPPA Section 61B relevantly provides:

” … (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.”

Therefore, if the son died before the mother, Section 61B(5)(b) would apply whereas if the mother died before the son, then 61B(4) would apply. Section 61B(6) would apply differently in each case upon the death of the son or the mother as beneficiary of the predeceased’s estate.

The Court considered the evidence of the circumstances of death and the statutory presumption in Section 35 of the Conveyancing Act 1929 (NSW) (“CA”) which provides that where two persons die in circumstances rendering the order of deaths uncertain then for all purposes affecting title to property, the deaths are taken to occur in order of seniority from oldest to youngest.

Although the evidence was not conclusive as to the exact cause and order of death, it was nonetheless not “uncertain” given the availability of some evidence which was on the “balance of probabilities” sufficient to establish it more probable than not that the son had predeceased the mother. The son cared for the mother and it was therefore more probable that he died first. Therefore, the whole of the estate passed to the mother upon the death of the son and upon the subsequent death of the mother was placed under statutory trust for the brothers and sisters of the mother as to be determined by further searches and enquiries.

Apart from the tragic circumstances out of which this case arose and the application of the test for considering the statutory presumption under Section 35 CA, the case highlights the importance of having a will which could have given the Court a clear direction as to the distribution of the estate assets and reduced the risk as was closely avoided here of the estate reverting to the State as bona vacantia.

Josephine Heesh & Kim Leontiev

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