CONTESTED WILLS AND FAMILY PROVISION
Contested Wills
A valid will is the instrument by which courts effect transfers of assets of the deceased in accordance with the deceased’s wishes. But that does not mean that a valid will cannot be contested. The distribution instructions in wills can and do create disputes, amongst beneficiaries as well as non-beneficiaries. In such circumstances, legislation and the courts recognise, in the interests of justice, what is termed as family provision claims. These are allowed for under Chapter 3 Succession Act 2006 (NSW); Part IV Administration and Probate Act 1958 (VIC); and Part 4 Succession Act 1981 (QLD).
Family Provision
Family provision claims allow that certain eligible persons, defined by legislation and usually persons related to or in a close personal relationship to the deceased, may make claims against the deceased’s estate. The basis of the claim is usually in terms of a demonstrable financial need.
Eligible persons include a spouse of the deceased and children, as well as any former spouse, grandchildren, adopted children or de facto partner at the time of death. It should be noted that legislation stipulates time limits for filing of claims in court which run from the date of death of the deceased.
The substance of the way these matters proceed in court is usually in terms of establishing evidence of the connection with the deceased (where this connection is disputed) and the financial need of the claimant.
Please contact us if you consider yourself in circumstances where you may wish to file a family provision claim, or where you may have a family provision claim filed against your beneficial interest in an estate.
Notional Estate In
New South Wales
A notion, as the word implies, is not actual, at the relevant point in time. Notional estate, as it applies to a deceased person’s estate, is the proposition that an estate may include assets not available in the actual estate.
These circumstances may arise where a family provision claim is afoot and where the deceased person had undertaken prior actions to reduce the potential size of his or her future estate by transferring assets out of their name.
While a testator should have every right to deal with their possessions as they wish to, legislation weighs the sometimes competing interests of a testator’s wishes against the rationale behind family provision, where the courts consider circumstances of parties who feel they have not been provided for adequately by the testator’s Will.
The concept of notional estate, absent in Victoria and Queensland, is contained in Part 3.3 Succession Act 2006 (NSW). The effect of this legislation is that an ‘actual’ estate can be increased by a ‘notional’ component under certain circumstances with the courts having the ability to ‘wind back’ a transfer
There are limits however to what may be brought back into an estate arising from classification as notional estate, one of which is a time limitation. Section 80, Succession Act 2006 (NSW) establishes that a transfer of assets out of the testator’s name which took place more than 3 years prior to the date of death cannot be included.
Please contact us if you are involved in an estate matter in New South Wales involving any potential notional estate.
