Full-blood or half-blood does it matter?

13 September 2021

The entitlement of half-siblings upon intestacy made clear again.

On intestacy, do all siblings have an equal entitlement to the distribution of the estate of a deceased sibling regardless of whether they are half or full-siblings?

Before the Administration and Probate Act 1958 (the APA) was amended in 2017, the answer was unequivocally ‘yes’. Section 52(1)(f)(vii) of the APA prior to the changes stated that:

“There shall be no difference between males and females or between the relationship of the whole blood and of the half-blood.”

When this provision was repealed and replaced with Section 70ZI, the entitlement of half-siblings became uncertain. The new provision did not refer to half-siblings and nor was a definition of ‘sibling’ inserted in the legislation to capture ‘half siblings’. It left all of us wondering why? And did this mean that because half-siblings weren’t specifically included that they are actually excluded?

Thankfully, the Supreme Court has now resolved the question of whether the current intestacy provisions in Part 1A of the Administration and Probate Act 1958 apply equally to full and half-siblings.

McMillan J in Re McKinnon [2021] VSC 529 concluded that there is no distinction between half and full-blood siblings for the purposes of the intestacy provisions. This decision should now give confidence to Legal Personal Representatives in distributing estates upon intestacy to blood siblings whether they are half or full-blood.

Rigby Cooke’s Wills, Trusts and Estates team is well placed to assist you should you have any questions or concerns.