It has been said that there are two things in life we can be assured of: death and taxes. And while death is inevitable and will come to us all, there will be some persons who will take steps to ensure that their wishes are carried out when they die but there are many others who prefer to hide from this fact and not make any effort to have their wishes known after death. The latter don’t seem to care and prefer to leave it to those left behind to sort out after their death and even resort to fighting if they have to. If you could care less about what happens after you die then this article is not for you. If you want to put things in place before you die or at least know what the law will allow if you have not made your wishes known, then read on.
This article will also give some definition of common terms used in inheritance cases.
In this article we will briefly look at the inheritance rules in Vanuatu and what must be followed for property to pass from the deceased persons estate to the persons entitled to inherit if someone dies without leaving a Will. In subsequent articles we will look at what you must do if you want to leave a Will and what happens after your death as well as the process for applying to the court if a person dies with or without a Will.
While relationships between family members may not be easy they can become more difficult after someone dies and leaves no Will. And even if there is a Will, once friendly relationships can become sour and before long there is in-fighting and what seems like no end in sight; especially in a country like Vanuatu where there is the belief that a woman, whether a spouse or a daughter does not have the same right as a male child, a brother or a male relative to inherit or manage the estate of the deceased.
If someone in your family has died and you believe that you may be entitled to inherit or you believe that someone should be appointed to deal with the deceased person’s property it is best to seek some legal advice as the question of who can apply to the court for the right and who has the right to inherit can get a bit complicated. If you choose to or cannot afford a lawyer you may visit the court for some direction on the steps to take or visit the Public Solicitor’s Office for more specific advice at a much reduced cost.
Meaning of terms
- Deceased is the person who has died.
- Estate is the property such as land, house, money and any other items owned by the deceased at the time of his/her death.
- Spouse is the husband or wife of the deceased.
- Issue are the children of the deceased.
- Sibling is the brother or sister of the deceased.
- Chattels are any movable property e.g. furniture, jelwery
- Will is a document left by the deceased regarding his/her wishes as to the division of his\her Estate after death.
- Testate is when a deceased person dies leaving a Will.
- Intestate is when a deceased person dies leaving no Will.
- Letters of Administration is the type of application made to the court when the deceased dies intestate, that is without a Will.
- Probate is the type of application made to the court when the deceased dies testate or with a Will.
- Heirs/Beneficiaries are those persons either named in the Will or named in the law who have the right to own the property of the deceased.
- Siblings of the whole-blood are brothers and sisters who share the same mother and father.
- Siblings of the half-blood are brothers and sisters who only share one parent, that is, they may have the same mother but not the same father or the same father but not the same mother.
- Applicant is the person who applies for or is entitled to apply for the right to distribute the property of the deceased. This person is not necessarily an heir.
- Creditor is someone to whom the deceased owes a debt.
- Grant is the final order of the court passing the property to the applicant for distribution to the heirs.
Who has the right to apply
Section 7 of the Queens’s Regulation No. 7 of 1972 provides for the following persons to apply to manage the Estate of the deceased in the following order:
- The husband or the wife of the deceased.
- If there is no husband or wife then one of the children or more than one of the children who is 21 years or over up to a maximum of 4 children of the deceased.
- Any other person living in Vanuatu who is fit to be trusted with the Estate.
- A Creditor.
If the husband or wife refuses to apply or cannot apply or does not wish to apply then the person applying must provide the court with the reason why they and not the wife or husband are applying and attach a sworn statement from the wife or husband indicating that they do not wish to apply or they cannot apply and are giving their permission for the applicant(s) to apply.
If any one of the children is applying then they must provide the court with sworn statements from the other siblings indicating that they are aware that their brother or sister has applied or intends to apply and they have no objection to the application.
Any person other than the wife or husband or children who is applying must also inform the court by sworn statement why they are applying and no one else and must provide the written consent of the spouse or children before the application can be approved by the court.
A creditor can apply to administer the Estate of the deceased if no other interested person has applied but the creditor must prove to the court in their sworn statement why they have the right to apply for and be granted administration, e.g. they are owed a debt by the deceased and are able to provide proof of debt.
Who has the right to inherit
Section 6 of the Queen’s Regulations provides for who has the right to inherit the property of the deceased. These are the family entitled to inherit in the order below:
- Wife or husband of the deceased. If married in Kastom or in church or outside of church proof of marriage must be provided.
- Children of the deceased both born in marriage or outside of marriage once they can prove by birth certificates that they are the child or children of the deceased. Adopted children whether adopted in Kastom or through the court must also provide proof of adoption.
- Parents of the deceased.
- Siblings of the deceased sharing the same mother and father and nieces and nephews of the whole blood.
- Siblings of the deceased and nieces and nephews of the half blood.
- Grandparents of the whole blood.
- Uncles and Aunts of the whole blood and children of the deceased Uncles and Aunts of the whole blood.
- Uncles and Aunts and Children of the deceased Uncles and Aunts of the half blood.
- The Crown, meaning the Government.
How much of the Estate do the heirs inherit.
Review the list below and see where you or members of your family may fall to know how much of the Estate you are to inherit.
- If the deceased leaves a spouse with children then the spouse will inherit all the immovables of the Estate. If the rest of the Estate is valued at less than AUD$10,000 then the spouse will inherit all the remainder as well. But if the remainder is valued at more than AUD$10,000 then the spouse will inherit only the remainder up to the value of AUD$10,000 only.
- If the deceased leaves a spouse with no children then in addition to the spouse taking the immovables and the remainder of the Estate up to AUD$10,000, he/she will also take ½ of what is left of the remainder and the remaining 2/3’s will go to the surviving parent absolutely or if both parents of the deceased are alive then to both in equal shares.
- If the deceased leaves children then the spouse will take what is specified at 1 above and 1/3 of the remainder of the Estate and the remaining 2/3 will go to the children in equal shares.
- If the deceased leave children but no spouse then the children will inherit the whole Estate in equal shares.
- If the deceased leaves no children or parent or parents behind then the spouse will inherit the whole of the Estate absolutely.
- If the deceased leaves no spouse or children or parents then the siblings of the deceased of the whole blood and the nieces and nephews of the deceased of the whole blood shall inherit the Estate in equal shares.
- If the deceased leaves no spouse or children or parents or siblings or nieces or nephews of the whole blood then the siblings and nieces and nephews of the half-blood will inherit the whole Estate in equal shares.
- If the deceased leaves no spouse or children or parents or siblings or nieces and nephews of the whole blood or half-blood then the grandparents will inherit the Estate in equal shares. If only one grandparent then that one will inherit the whole Estate.
- If there is no grandparent or grandparents then the Uncles and Aunts of the deceased of the whole blood and children of the deceased Uncles and Aunts of the whole blood shall inherit in equal shares.
- If there are no Uncles and Aunts and children of the deceased Uncles and Aunts of the whole blood then Uncles and Aunts and children of deceased Uncles and Aunts of the half-blood will inherit the whole Estate in equal shares.
- If no heirs come forward then the Estate will go to the Crown/Government and the Crown may, out of all or part of the Estate provide for dependants of the deceased or any other persons, whether family or not, who would not be entitled to inherit but whom the deceased might reasonably have been expected to provide for.
A follow up article will provide details on how you may apply to the court to be able to inherit the property of the deceased.
You may contact the writer at the address below if you have any questions on the above.
DISCLAIMER – This is a legal column to provide basic information on the law and court procedure. It is not to be used as a substitute for legal advice but to be used only as a starting point in understanding what you might need and what you might need to do.