3. THE FINDINGS
Updates and background for this project (Digest)
CHARACTERISTICS OF ESTATES
3.1 The mean net value of all the estates was $752,169. However, having regard to the large range of estate values (from $1,000 to $123,851,389), the average estate value is more accurately indicated by the median value range of $300,000-400,000 for all estates. The average net value of estates with wills was $774,802 (median value $300,000-400,000), with estate values ranged between $1,000 and $123,851,389. The average net value for estates without wills was $213,888 (median value $100,000-200,000), and ranged between $12,255 and $967,690. Of the 23 estates without wills, 10 (43.5%) had a value of less than $100,000, in comparison to 84 (15.3%) estates with wills of less than $100,000, from a subsample total of 548. This data demonstrates that on average, intestate estates are of smaller net value than those with wills.
3.2 Of the 571 files, 71 identified the deceased as also owning joint property with another party. In 12% of estates with wills the deceased also owned joint property, whereas in 21.7% of intestate estates the deceased owned joint property. The majority held joint property with a spouse through marriage (83.1% of joint property cases), and as such it was more likely the deceased would be male (78.9% of cases). This suggests that in many cases distribution of estate wealth may occur through transmission of joint property to the benefit of the surviving spouse, commonly a widowed female. Female widows were therefore more likely to hold property absolutely, rather than in joint tenancy. The average value of property held jointly between the deceased and another party was $499,824, and in 64.8% of such cases the property value included real estate.
3.3 365 of the 571 files included real estate within the estate of the deceased. 64.8% of estates with wills included real estate, whereas 43.5% of estates without wills involved real estate. The likelihood of an estate holding real estate was unrelated to the marital status of the deceased, so that 63.2% of the deceased with spouses held real estate, and 64.8% of the deceased who were not in relationships with spouses held real estate. Estates were more likely to include real estate when the deceased was survived by children. In such cases 67.3% held real estate, in comparison to cases where the deceased did not have children, where 50.5% held real estate.
ESTATES WITH WILLS
Characteristics
3.4 Of the 571 estates included in this analysis, 548 contained wills filed in association with applications for probate and letters of administration with the will annexed. The average net value of estates with wills was $774,802, within the median value range $300,000-400,000. The age at death for the deceased in these cases ranged from 37 years to 102 years, with an average of 81.21 years. Estates with wills were more likely to involve a female than a male, representing 55.8% and 44.2% of cases respectively, possibly because females in this sample survived their spouse or partner in most cases and as such their estates may be less likely to be distributed as joint property (see paragraph 3.2).
3.5 The mean age at which testators last updated their wills was 72.3 years, which indicates that on average the last amendment predated death by 9 years. This interval means that actual distribution patterns may reflect second or third preferences in cases where beneficiaries have predeceased the testator. In order to account for such intervals the data was analysed so that distribution patterns reflected those initially intended or preferred from the will, as opposed to actual distribution patterns at the time of death. This was achieved by re-coding the marital and family status of the deceased to indicate these relational networks at the time the will was written. As such, distribution patterns reported in the present study show how deceased persons preferred to distribute their estate in the context of their family environment when they wrote the will.
3.6 At the time of writing the will 238 of the testators were involved in a spousal relationship (136 males, 102 females), representing 43.4% of all testate cases. The deceased did not have a spouse when they wrote the will in 310 cases (106 males, 204 females), or 56.6% of testate estates.
| Presence / absence of spouse | Marital Status | Number of Cases | Percentage |
| Had a spouse | Married | 220 | 40.1% |
 | Separated | 8 | 1.5% |
| De facto | 10 | 1.8% |
| Did not have a spouse | Widowed | 239 | 43.6% |
| Divorced | 26 | 4.7% |
| Never Married | 45 | 8.2% |
| TOTAL: | 548 | 100.0% |
Figure 3.1: Distribution of marital status when the will was written
3.7 The study identified 454 testators (82.9% of testators) as having children when they wrote the will, and 94 testators (17.1%) as not having children when they wrote the will. Testators who had a spouse when they wrote the will also had children in 222 or 93.3% of cases, and testators who did not have a spouse were identified as having children in 232 or 74.8% of cases. The deceased was more likely to have children across every category of marital status, except for testators who had never married. 42 of the 45 who had never married (93.3% of estates) did not identify living children at the time the will was written.
Figure 3.2: Presence or absence of spouse and children for cases with wills, when the will was written
Distribution where testator had spouse only
3.8 Of the 16 testators who had a current relationship with a spouse but had no children at the time the will was written, 100% gave the entire residue of the estate to their spouse. This trend applied both to 14 married testators and 2 in de facto relationships. 2 estates (12.5%) also provided for nieces and nephews in the form of substantial bequests (“substantial bequests” are defined in this study as being more than 15% of the estate). 10 estates within this category contained substitutionary clauses, the majority of which provided for siblings (30% of clauses) and their children (60%), being nieces and nephews of the deceased.
| Marital / Familial status | Distribution | Total | Total | Total |
| Spouse, no children | All to spouse | 16 | 16 | |
| Spouse, and children | All to spouse, none to children | 167 | | |
| All to children, none to spouse | 43 | | |
| Some to spouse, some to children | 5 | | |
| Some to children and other, none to spouse | 7 | 222 | 238 |
| Children, no spouse | All to children | 190 | | |
| Some to children, some to other | 28 | | |
| None to children, all to other | 14 | 232 | |
| No spouse, or children | To nieces and nephews | 19 | | |
| To siblings | 25 | | |
| To other family | 10 | | |
| To other than relatives | 24 | 78 | 310 |
| TOTAL: | | | 548 |
Figure 3.3: Table of intended distribution from wills by presence or absence of spouse and children
Distribution where testator had spouse and children
3.9 When they wrote the will, 222 testators had both a spouse and children. The intended distribution of these estates is illustrated in figure 3.4. Residue of the estate was distributed entirely to the spouse so that children received no portion of the residue in 167 (75.2%) cases, whereas children were the sole beneficiaries of residue to the exclusion of the spouse in 43 (19.4%) estates. Both the spouse and children of the testator shared as beneficiaries of the residue in 5 (2.3%) estates. The estate was shared between children and other family members or non-relational parties to the exclusion of the spouse in 7 (3.2%) cases.
Figure 3.4: Distribution where testator had spouse and children when they wrote the will
3.10 It may be seen from the results that within this family environment, spouses were included in residue distributions in 172 (77.5%) of the cases and received no residue in 50 (22.5%) cases. In no estate did the testator exclude both spouse and children from residuary distribution. Children were excluded from receiving any portion of the residue in 75.2% of estates. However, of the 167 estates that gave all of the residue to the spouse, 14 (8.4%) testators made substantial bequests to their children and 148 (88.6%) provided for their children within substitutionary clauses. Only 10 cases were identified in this category in which the children received no part of the residue and were not given a bequest or named as a substitutionary beneficiary, representing 4.5% of all estates where the testator had both spouse and children. As such, there were few examples in these estates where the children received no consideration under the will.
3.11 The 50 estates in which the spouse did not receive any part of the residue were examined to determine whether other provisions were made for the spouse. Only 4 of the wills made substantial bequests to the spouse. Of the 35 cases in this category that involved real estate, 5 wills gave the spouse a life interest (see paragraph 3.28). The absence of provision for the spouse from these estates was not explained by the ownership and transmission of joint property between the testator and the spouse, with only 5 of the cases indicating the deceased held assets in joint tenancy. This indicates that in a number of cases no significant provision was made for the spouse, which may reflect that testators were unwilling to provide for the spouse in these cases, and the possibility that such spouses held independent assets.
3.12 The hypothesis that females may be more likely to distribute to children because the male spouse is more likely to hold separate real estate or have independent wealth was tested. Comparisons of gender proportions showed that in relation to the ratio of males (57.7%) and females (42.3%) who had both a spouse and children when they wrote the will, females were no more likely to distribute residue to their children than males, with proportions of 42.7% and 58.3% respectively. Moreover, the proportion of males who owned separate real estate was no more than would be expected from the gender ratio, so that distribution of the 35 cases of real estate comprised 57.1% for males, and 42.9% for females.
3.13 As the size of the estate increases, is there a greater tendency to provide for both spouse and children? The above data indicates that only 5 cases distributed residue between both spouse and children, and the average net value of these estates was $146,417, with a median range of $100,000-200,000. In comparison, the majority of estates that left all to the spouse had an average net value of $505,480, within the value range of $300,000-400,000. This data suggests that distribution amongst both spouse and children is firstly an uncommon preference, and further is not associated with larger estate values.
Distribution where testator had spouse and children from previous relationships
3.14 Of the 222 cases where the deceased had both a spouse and children when the will was written, 16 testators were identified as having children from previous relationships. The residuary distribution of these estates is shown in figure 3.5. The testator named the current spouse as sole beneficiary of residue in 7 (43.7%) estates, whereas children received the residue exclusively in 5 (31.3%) cases. The residuary estate was shared between the spouse and children in 2 (12.5%) cases, and the estate was shared between children and other family members or non-relational parties to the exclusion of the spouse in 2 (12.5%) cases.
Figure 3.5: Distribution where testator had a spouse and children from previous relationships
3.15 The above data demonstrates that spouses received some residue in 56.2% of estates, and children from previous relationships received residue in 56.3% of cases. The equal distribution between spouses and children for these cases is distinct in comparison to the overall trends for testators who had both a spouse and children, which were weighted in favour of the spouse so that 77.5% of estates provided for the spouse to some degree, whereas 24.9% of estates provided for children.
3.16 Of the 7 estates where the spouse was not a beneficiary of the residue, only 2 files indicated joint tenancy between the testator and spouse. This finding indicates that in 5 cases, or almost one third (31.3%) of estates where the deceased had a spouse and children from previous relationships, the spouse received no provision from the estate of the testator either as a direct beneficiary of residue under the will, or from transmission of joint property after the death of the testator.
Distribution where testator had children only
3.17 Of the 310 testators who were not in a spousal relationship when the will was written, 232 were identified as having children. In 207 (89.2%) of these estates, the deceased was widowed when they wrote the will, and were divorced or had never married in 22 (9.5%) and 3 (1.3%) cases respectively. The distribution for residuary estates where the testator had children but no spouse when they wrote the will can be seen in figure 3.6. Children of the deceased were the sole beneficiaries of residue in 190 (81.9%) estates, and shared some portion of residue with other family members and non-relational parties in 28 (12.1%) cases. There were 14 (6.0%) estates in which other parties were the sole residuary beneficiaries, so that children received no part of the residue.
Figure 3.6: Distribution where testator had children only
3.18 These results indicate that in 218 (94.0%) of the estates children received a substantial portion of the residuary estate, whereas other parties were beneficiaries to some extent in 42 (18.1%) cases. Of the 218 estates in which children were named as beneficiaries of the residue, representations for their children (grandchildren of the testator) were specified in 56.4% of cases, and for issue of the testator’s children in 6.9% of cases.
3.19 The majority of beneficiaries other than children were in a direct relationship with the testator’s children (27 cases, 64.3%), either as grandchildren to the testator in 21 cases, or spouses to the testator’s children in 6 cases. Other parties that received portions of the residue included friends in 7 cases, other family members in 2 cases, and charities in 3 estates.
3.20 In the 14 cases where no residuary provision was made for the children the primary beneficiaries were grandchildren who were identified in 5 cases, and individuals of no relation to the deceased in 7 cases. Of these estates 3 left substantial bequests to children, and 1 case named children as the substitutionary beneficiary. These data suggest that in all but a very small proportion of estates, provision was made in these cases for children or their nuclear family.
Distribution where testator had no spouse or children
3.21 78 testators did not have a spouse or children at the time they wrote the will. In 9 of these estates the children had already predeceased the testator when the will was written. This resulted in several cases where the deceased nominated their grandchildren or children in-law as beneficiaries. In order to determine the pattern of distribution when nuclear family beneficiaries are not available, the following data represents distribution for the 69 estates where the testator never had children. The spouse was widowed in 25 (36.2%) of these cases, was divorced in 2 (2.9%) cases, and had never married in 42 (60.9%) cases.
3.22 Distribution of residuary estates where the testator did not have a spouse when they wrote the will, and never had children is illustrated in figure 3.7. Siblings of the deceased were the primary beneficiaries of residue in 23 (33.3%) estates, and nieces and nephews were bequeathed the residue in 17 (24.6%) cases. Other relatives of the testator such as parents, cousins, and aunts or uncles received the residue of 7 (10.1%) estates, whereas parties other than family members, including friends and charities, were entitled to the residue in 22 (31.9%) cases.
Figure 3.7: Distribution where testator did not have spouse or children
3.23 The data for these estates reveals that in most cases where there were no children or spouses, the majority of testators provided for brothers and sisters (33.3%) and their children (24.6%), being nephews and nieces of the testator. Evidence of testator intentions to provide for the families of siblings was further demonstrated in representations for residuary distribution, with 39.1% of distributions to siblings allowing representation to their children. However, none of the distributions to siblings included representation to their issue.
3.24 Further, 41.2% of distributions to nieces and nephews incorporated representations to their children, being grand-nephews and nieces of the testator. One representation clause for the testator’s nephew specified issue, indicating an intention to provide for the sibling’s family to the extent of considering great grandchildren of the brother or sister. These data demonstrate that in many cases testators were willing to make provisions for grand-nephews and nieces under the will, in the event that the nephew or niece should predecease the testator.
3.25 These findings indicate that besides provision for siblings and their families, other relatives received little consideration within this sample. 7 estates (10.1%) made reference to other family in distribution of residue, such as to uncles and aunts, parents, cousins, and relations by marriage. No testator provided for older-generation family members such as grandparents. It may be noted that the minimal consideration of elder relatives such as parents, aunts and uncles, and grandparents may reflect both unwillingness to provide for these relatives, and the probability that many such family members would have predeceased the testator, in light of the average age (81.21 years) of testators in the sample.
3.26 In contrast, almost a third of estates (31.9%, 19 cases) named parties other than relatives as the primary beneficiary, so that 15 residuary estates were distributed to friends and other non-relational parties, and 4 were distributed to charities.
Survivorship clauses in wills
3.27 Almost one third (32.3%) of estates with wills contained survivorship clauses that specified the length of time a party must survive after the death of the testator in order to receive a portion of the estate. Survivorship clauses related to the spouse as a beneficiary in the majority of cases (76.8% of clauses), and to children as beneficiaries (19.2%). Only 6 clauses (3.4%) specified a set survivorship interval for all beneficiaries within the will. Specified intervals for the survivorship clause ranged from 14 days to 1 year, the most common duration being 30 days, or an average month.
Life interests in wills
3.28 Provisions establishing life estates, whereby a specified party may make use of assets from the estate until their death, were present in only 28 wills, or 5.1% of all testate cases. 35.7% of life estates were bequeathed to the spouse, whereas various other parties such as children and siblings were the subject of the remaining life estate provisions. The assets involved in life estate provisions reverted to the residuary beneficiaries in 39.3% of cases. In the remaining 60.7% of wills involving life estates, those entitled in remainder were specified within the will, the majority of which (46.4% of all life estates) involved children of the deceased.
ESTATES WITHOUT WILLS
Characteristics
3.29 Of the 571 files used in analysis, 23 involved letters of administration in which the deceased was intestate. The average net value of these estates was $213,888, within the median range of $100,000-200,000. Age at death of the deceased ranged from 28 years to 99 years, at an average of 60 years. Males and females were similarly likely to be intestate, representing 52.2% and 47.8% of cases respectively.
3.30 In 8 of the intestate cases the deceased was in a spousal relationship (6 males, 2 females) at the time of death, representing 34.7% of all intestate estates. The deceased was not survived by a spouse in 65.3%, or 15 cases of intestacy (6 males, 9 females). The distribution of marital status in such estates is indicated in figure 3.8.
| Presence / absence of spouse | Marital Status | Number of Cases | Percentage |
| Was survived by spouse | Married | 5 | 21.7% |
| Separated | 1 | 4.3% |
| De facto | 2 | 8.7% |
| Was not survived by spouse | Widowed | 7 | 30.4% |
| Divorced | 3 | 13.0% |
| Never Married | 5 | 21.7% |
| TOTAL: | 23 | 100.0% |
Figure 3.8: Distribution for marital status at time of death in cases of intestacy
3.31 The average net value of estates where the deceased was survived by a spouse at the time of death was $201,920, with a value range median of $100,000-200,000. The deceased was survived by children in 7 of these estates, whereas 1 deceased who had a de facto spouse was childless.
Figure 3.9: Presence or absence of spouse and children for cases of intestacy, at time of death
3.32 The average net value of intestate estates where the deceased did not have a spouse at the time of death was $209,952, within the median range of $100,000-200,000. The deceased was childless in 7 of these estates, arising from 1 widowed estate, 1 case of divorce, and 5 cases where the deceased had never married. The files did not provide complete information to indicate which parties would qualify as beneficiaries to the estate in the 7 cases where the intestate had no surviving spouse or children.
