The legislation considers the following persons to be eligible in making a family provision claim:

There can also be whole or partly overlapping roles, for example, a close personal relationship compared to a spouse or de facto partner might seem a superfluous distinction. How and what direction eligibility in a family provision claim should take is a function of various considerations and is a decision best made upon seeking legal advice.

As in most legal matters, time limits apply. In New South Wales, any application to the courts for a family provision claim must generally be made within 12 months of the date of death of the deceased (extensions of time may be granted by the court in limited circumstances). In other states, the limitation period can be less. For example, in Victoria, South Australia and Western Australia the limitation period is 6 months, and in Tasmania only 3 months, with time starting to run from the grant of probate/letters of administration.

While being an eligible person in family provision gets one through the door, the courts will, as a matter of course, assess the circumstances of the applicant in a family provision claim. Some of the factors the courts may consider are as follows:

Notional estate, as the words suggest, refers to what may be notionally held to be part of an estate, but where in fact the relevant asset at the time of consideration is no longer in the name of the deceased or remaining in the estate. For up to 3 years therefore prior to the death of the deceased as well as after the death of the deceased, any asset transferred out of the name of the deceased, either by the deceased or by any other person, can be unwound and included in the deceased person’s estate.

Depending on your point of view, the good or bad news, is that New South Wales is the only state in Australia which has notional estate on its statutes.

It should be noted however that the idea that laws can un-do actions, in this case actions undertaken by a testator, is not without parallels. In the 2 years prior to an insolvency event for example, transfers of assets to avoid creditors can be unwound. Similarly, proceeds of crime which are so designated can also be clawed back.

Notional estate is a powerful tool enabling family provision claims in New South Wales, with its ability to reach over ownership such as joint tenancy in property, superannuation interests and any other transfers made out of the deceased person’s name, subject to time limits, to be brought back into the estate by the courts.

As with all matters, the New South Wales courts must consider various factors, one of which is the substantial justice and merits in either making or refusing to make a notional estate order.

Notional estate therefore lends to family provision claimants in New South Wales an added potency and teeth absent in other states and territories.

There are a myriad of family provision claims which have made their way to the courts. Each matter has its own nuances requiring specific legal advice as to the kind of family provision claim and initiating action offering the best potential for positive outcomes to the claimant.

It should also be noted that family provision claims are heard by Supreme Courts, where litigation costs tend to be higher than for lower courts. The issue of costs is a complex one which straddles all areas of litigation and we do not propose to address that subject here. Suffice to say for the purposes of family provision claims that legal costs should also be a factor in the decision-making calculus.

Bainbridge Legal offers mediation services for the resolution of family provisions claims, in addition to other forms of disputes involving deceased estates. Call us today for a no obligation assessment.