5. Intestacy

5.1 Next of kin

I include a very ‘quick quiz’ here as to next of kin, only because I heard something recently that I found gob-smacking—namely the lack of knowledge about the hierarchy of next of kin.

So here is a quick reminder:

• spouse first—and this includes a person who is lawfully married to the deceased or in a ‘domestic partnership’ (essentially a de facto relationship of more than two years, unless there is a child born), and this includes same sex relationships and multiple partners;^[137]
• issue next;
• then parents
• from there we go to:
  • siblings (including their children by substitution)
  • grandparents
  • uncles and aunts (including their children by substitution).^[138]

5.2 Per stirpes

The distribution is per stirpes not per capita, when it comes to substitutional gifts. Section 127(4) spells out the position with respect to children, using the language of ‘presumptive share’:

(4) If one or more of the intestate’s children predeceased the intestate leaving issue who survived the intestate:

(a) allowance must be made in the division of the entitlement between children for the presumptive share of any such deceased child, and

(b) the presumptive share of any such deceased child is to be divided between that child’s children and, if any of these grandchildren (of the intestate) predeceased the intestate leaving issue who survived the intestate, the deceased grandchild’s presumptive share is to be divided between the grandchild’s children (again allowing for the presumptive share of a great grandchild who predeceased the intestate leaving issue who survived the intestate), and so on until the entitlement is exhausted.

That’s probably enough of an update from me today. Thanks for inviting me to speak again this year.