Divorce & Accidental Intestacy

Colin Thorne died on 11 June 2003 aged 70. He had been divorced for many years and was survived by his three daughters, then aged 45, 43 and 41.

Mr Thorne had a solicitor make a will that was executed sometime during 1979 leaving his entire estate to his eldest daughter. The Will was found in Mr Thorne’s home shortly after his death and thereafter promptly taken to the solicitor who drafted it, to attend to the issue of a grant of probate.

The eldest daughter moved into the deceased’s home. She paid the mortgage, all outgoings and maintained the property. She continues to live in the home.

In anticipation of the 1979 Will being admitted to probate, Mr Thorne’s middle and youngest daughters commenced a family provision claim in 2005

However the will was not admitted to probate. A decree nisi for the dissolution of of Mr Thorne’s marriage was made on 21 November 1979 and became absolute on Saturday, 22 December 1979. Legislation provided that the Will was revoked by the dissolution of a marriage, unless it was made in contemplation of divorce. Therefore Mr Thorne died intestate.

The daughters and their legal advisers did not understand that fact until 2011. The Public Trustee was granted letters of administration of the intestate estate in December 2013; under intestacy rules each of the three daughters would receive a one-third share of the estate.

Although the will was made over 10 years before he died Mr Thorne had repeatedly told a friend that he intended his entire estate to go to his eldest daughter, as he believed that she was the only daughter who cared about him.

In July 2014 the eldest daughter went to court as state law allows specified eligible relatives to seek additional provision from a deceased estate for proper maintenance and support. However for a number of reasons the Court found that notwithstanding that it was the deceased’s intention to leave everything to her it had no authority to write or re-write a will based upon the intentions of the deceased.

It illustrates that a Will should be updated regularly. It is a document that should reflect your present intentions and not ones that may have been important years before. Similarly you should update a Will when you are get married or start living with a partner, when you have children, or at any moment that you consider to be a significant personal milestone in your life; it is your life and it is up to you to plan for your future – after all no one else can make those choices like you can.

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