His Children Almost Lost Everything – When Intestacy Took Control

‘Under the law, it didn’t matter how short the marriage was, what the circumstances were, or what he truly wanted. Without a Will, the intestacy rules stepped in, and the children were left to bear the consequences.’
– Paul Falzon

Key Facts

• Matter Type: Dying Without a Will (Intestacy) / Family Provision Claim
• Clients: Two siblings, aged 24 and 18
• Estate Value: Approximately $1.1 million
• Duration: Around 2 years
• Legal Basis: Succession Act 2006 (NSW)
• Complication: Spouse of 4 months entitled to majority share under intestacy
• Outcome: Nearly $300,000 secured for each child, well above their intestacy entitlement

The Original Situation – A Marriage of Convenience

Shortly before Niamh’s father passed away in tragic circumstances, he entered into a marriage. The family believed, and indeed the evidence suggested, that his new spouse had desired the marriage to secure a visa.

Before his death, Niamh’s father had taken legal advice about pursuing an annulment, a step which not only would have ended the marriage, but may also have prevented the issue of a visa. But, he passed away before that process could be finalised.

The Challenge – When Intestacy Laws Override Family Reality

As Niamhi’s father didn’t have a Will, his estate would be distributed under intestacy rules in NSW.

These are the laws that govern who inherits when someone dies without a valid Will, usually meaning that the legal spouse receives most of the estate. This is regardless of the length of the marriage, the circumstances, and what the deceased person actually wanted.

Niamh found text messages on her father’s phone. In those messages, the wife had explicitly told her father she had no interest in his assets and had asked him to marry her to avoid deportation. The messages were relevant, and they were factually compelling, but the court found they could not be admitted as evidence.

Compounding the situation, the spouse could not be located for an extended period following the death, although she reappeared shortly before court proceedings commenced.

So, two children who had lost their father, were going to receive less than a fifth of his $1.1 million estate. Meanwhile, his disappearing wife of just four months, a woman he had been trying to leave, would take the majority share. Wishing to find a solution, Niamh contacted Falzon Legal.

Dying Without a Will in NSW – Carrying the Consequences

While legal issues loomed, Niamh was forced to take on a role no 24-year-old should have to experience. She had to shoulder the weight of:

• Sorting through her father’s belongings.
• Managing the damaged property.
• Navigating insurance.
• Uncovering difficult truths about the final months of his life.

Niamh did everything in her power to manage the issues left behind by the estate. Yet, despite all her tireless efforts and the tragic circumstances, the legal reality seemed clear. Without a Will, the law would ultimately determine the outcome.

Taking Action With Falzon Legal – A Family Provision Claim

With Falzon Legal’s guidance, Niamh decided to take legal action.

It wasn’t about undoing the marriage, that was impossible, it was to find a fair outcome from her father’s estate.

From the very beginning, the matter was emotionally intense, legally complex, and procedurally challenging, particularly since the wife couldn’t be located for an extended period.

Making a Family Provision claim required persistence and time. Meanwhile, Niamh was still dealing with the practicalities of the estate. Falzon Legal supported her through both aspects, assisting with legal strategy while also helping coordinate the steps needed to secure and manage the property during this difficult period.

The matter went through the court process over a period of nearly two years. Throughout, every effort was made to achieve the best possible outcome within the constraints of intestacy law.

The Outcome – A Step Toward Fairness Within the Limits of the Law

Although the spouse still received a large portion of the estate due to intestacy, Falzon Legal successfully secured settlements of nearly $300,000 each for Niamh and her brother. Falzon Legal navigated the mediation process and court hearings to pull back as much as possible from a morally unfair situation.

This was achieved through careful negotiation and persistence across both mediation and court proceedings. Working to recover as much as possible within strict legal limits, and to reflect, as closely as the process allowed, what their father would have wanted for them.

Importantly, both received significantly more than their intestacy entitlement.

As Principal Lawyer Paul Falzon explains,

‘The law constrained the outcome. What we could do was fight within that constraint as hard as possible for those two kids. The result wasn’t what anyone would call fair, but it was the best the law allowed for.’

Key Takeaways for You

This case is a clear demonstration of what intestacy law actually does to real families.

A valid marriage, regardless of how it came about, how long it lasted, or whether it was in the process of being dissolved, can create an entitlement that the courts are legally required to follow, even if the outcomes seem unfair.

Text messages, witness accounts, and other evidence about the true nature of a marriage cannot always override intestacy law if there’s no Will. The courts cannot guess what the deceased person wanted if it wasn’t formally recorded.

What You Should Do:

• Have an up-to-date, valid Will, formalised by a lawyer.
• Ensure your wishes are clearly and legally recorded.
• Protect your loved ones from uncertainty, conflict, and legal disputes.
• Avoid outcomes that may not reflect what you truly intended.

How Falzon Legal Can Help

If you’re facing similar issues, want to ensure your children are protected, or are in a complicated relationship yourself, get in touch to discover more about our services:

• Making a Will – prevent intestacy issues.
• Contesting a Will in NSW – how we fight for you if you’re inadequately provided for by a Will.
• Family Provision Claim in NSW – discover your rights if you’ve been inadequately provided for.
• Intestacy disputes – what you should do when there’s no Will.

Related Intestacy and Family Provision FAQs

What Happens If You Die Without a Will in NSW?

Intestacy is the set of rules that state who inherits a person’s estate when they pass away without a valid Will. In NSW, the Succession Act 2006 (NSW) outlines the order of entitlement. This usually starts with the spouse, followed by children and then other relatives.

Does a Short Marriage Still Give a Spouse Rights to an Estate in NSW?

Yes. A spouse of only a few months can still have the same legal entitlement as a spouse of many years. This is assuming that the marriage was legally valid at the time of death and there’s no valid Will explaining the deceased’s intentions.

Can Text Messages Be Used as Evidence in an Estate Dispute in NSW?

Possibly. Text messages may sometimes be used in evidence, but admissibility isn’t straightforward. The Court must be satisfied that the messages are real, reliable, and comply with the rules of evidence.

In many cases, the defence can challenge how the messages were obtained, who sent them, and whether they can be verified.

Can Children Make a Family Provision Claim If a Parent Dies Intestate?

Yes. If a child believes the intestacy rules have left them without adequate provision, they may be able to make a Family Provision Claim. This applies even where a spouse or other party has received the majority of the estate under the standard order of entitlement.

Can an Annulment Affect Inheritance Rights in NSW?

Yes! If a marriage is annulled before death, the former spouse will typically lose their intestacy entitlement. But, if a person passes away before the annulment is finalised, the marriage is still recognised as legally valid, meaning the spouse’s entitlement under intestacy law will usually remain.

What Can Children Do When a Parent’s Estate Goes Largely to a Spouse Under Intestacy?

Children may be able to make a Family Provision Claim if they believe they haven’t received adequate provision from the estate. Although the outcome is not guaranteed, this process is an important route to finding a more equitable result.