This is the third part in our series about challenging a will. Today we continue our discussion of Family Provision claims.
Previously, we outlined what Family Provision Orders are for, who is eligible for provision, and what the court considers when making an Order.
Basically, eligible persons (spouses, children, etc.) may apply for Family Provision on the basis that the deceased made inadequate/no provision for them.
If satisfied that an Applicant was not adequately provided for, the NSW Supreme Court (or District Court) will make Orders for provision from the deceased’s Estate.
What is the Notional Estate?
‘Notional Estate’ was introduced in NSW to prevent deceased persons from frustrating potential Family Provision claims.
In all other Australian states and territories, Family Provision can only be made out of property within the deceased’s Estate.
The Succession Act 2006 (NSW) allows other property, not held in the deceased’s name at the date of death, to be included as part of a ‘Notional’ Estate. This may greatly increase the resources available for a Family Provision Order.
Subject to various statutory rules, Notional Estate assets may include:
- Certain assets that were gifted/transferred by the deceased during their lifetime. Assets transferred more than 1-3 years prior to the deceased’s death are excluded from the Notional Estate.
- Assets held in structures controlled by the deceased, e.g. trust or superannuation structures.
Making a Notional Estate Order
Notional Estate Orders are not made lightly. Before designating property as part of the deceased’s Notional Estate, the Court will consider various matters including:
- Whether the Estate is sufficient to satisfy the Family Provision Order and/or any costs Order. If it is sufficient, a Notional Estate Order will not be made.
- The justice and merits of making or refusing a Notional Estate Order.
- The value and nature of property.
- The circumstances in which the deceased’s property was transferred/gifted.
- Time limits.
Seek Expert Advice
Family Provision claims can be complicated. You need legal advice.
Martin Bullock Lawyers can assist you to make a Family Provisions claim. If you are the Executor of an Estate, we can help you manage a claim.
If you need advice in relation to Family Provisions or any other Wills & Estates matter, contact Greg Martin or Jacqueline Wainwright on (02) 9687 9322.