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Where am I now? Lawlink > Understanding Your Legal Rights > Equal Rights > Wills, death & inheritance
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Wills, death & inheritance
 If you die without a will
Making a will
Could my will be contested?
If you die without a will
Under the Wills, Probate and Administration Act 1898 (NSW), if you die without having made a will, your same sex partner is regarded as your spouse in the distribution of your estate on intestacy.
If you and your partner have lived together continuously for the two years before your death, or if you had a child together, your partner would generally be entitled to inherit your estate. Your partner would automatically inherit if there were no other spouse and no-one contests your partner's entitlement.
If you and your partner have not lived together for two years, nor had a child together, your surviving husband or wife (if there is one) or children from a previous relationship would take precedence and be entitled to your estate instead of your partner.
If someone other than your current partner were entitled to inherit your estate, your partner could still make a claim under the Family Provision Act . To make a successful claim under this Act, your partner would need to demonstrate that you had both lived in the same household and that they deserved or needed a share of your estate compared to the claims of other relatives or beneficiaries. This is a discretionary process and the court decides between competing claims. The rules about inheritance are quite complicated, so you should always seek legal advice.
Making a will
The easiest and most sensible way to ensure your property is distributed according to your wishes is to make a will. It is essential to make a will if you want to be sure of providing for your partner after your death.
Even if your partner does not depend on you financially, a will provides a means of giving your partner any cherished belongings. You may also want to leave gifts of money to friends, charities or lesbian or gay organisations, or to express wishes about matters such as funeral arrangements. You can't do this without a will.
In your will you must appoint an Executor, preferably someone you trust to carry out your wishes. You can appoint your partner as your Executor. If you don’t know who to appoint, the Public Trustee will act as Executor for a fee. You can also direct how you would like to be buried or cremated and what sort of funeral service you would like, although these sorts of directions are not binding.
It is advisable to have your will prepared by a lawyer, as there are special rules as to how a will must be signed and witnessed. If these rules are not followed, your will may be invalid and your wishes may not be carried out. Having a will prepared by a lawyer is generally inexpensive. Some community legal centres may do it free of charge.
Could my will be contested?
In some instances, yes. Even if you make a will leaving your property to your partner, it is still possible that members of your biological family or other dependants could challenge this will after your death under the Family Provision Act 1982. This Act allows claims by spouses, ex-spouses, same-sex partners, children and even grandchildren and parents. If you anticipate a challenge to your will by a family member, discuss this with your legal adviser when you make your will. Making a will, with the advice of a lawyer, is still the best way to make sure your wishes are followed.
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About this website
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While every effort has been made to ensure that the information on this website and in the Understanding Your Legal Rights booklet is as up to date and accurate as possible, it is not a substitute for legal advice. The law is complex and may change. Readers are advised to seek specific legal advice in relation to their particular situation.
Further information.
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