"
skip to Main Content

02 4050 0330

    • Medical Negligence
    • Women’s Health
          • Women’s Health

            We know that there is disparity in women’s health care, treatment, and support. We are committed to improving the lives of women and strongly advocating for their wellbeing.  That is why we take a stand and hold medical professionals accountable when medical care falls short of expected standards by delivering the best outcome in medical negligence claims affecting women.

            Read More

    • Hospital Negligence
          • Hospital Negligence

            We understand you may feel let down because you have experienced inadequate or negligent care and treatment in a hospital or medical facility. Your wellbeing is most important to us and we are committed to supporting you with compassion and holding medical professionals accountable for breach of duty and negligent care.

            Read More

    • Clinical Support
          • Clinical Support

            Experiencing poor or adverse outcomes from allied health treatment can be distressing and life changing. We are here to support you through your claim and it is our aim to hold allied health professionals accountable for their breach of care by delivering the outcome you deserve to your negligence claims.

            Read More

    • I need help
          • Not Sure where to start?

            Hello, I’m Jade. I’m here to help you with a quick discovery call that will help us better understand your legal concerns. This way, I can connect you with the lawyer who is best suited to assist you with your situation.

            Your well-being is important to us, and we’re here to support you every step of the way.

            Call me on 02 4050 0330 or email admin@conradcurrylaw.com.au

    • Personal Injury
          • Personal Injury

            If you have been injured because of someone else’s negligence, our specialist team of Personal Injury Lawyers is here to support you with compassion and understanding providing you with the right advice. Our team has substantial experience and expertise in these matters to deliver the outcomes you deserve from your claim.

            Read More

    • Work Injury
    • Motor Vehicle Accidents
          • Motor Vehicle Accidents

            We are here to support you and give you the clarity, guidance and the right legal advice if you have been injured in a motor vehicle accident. Our compassionate team of professionals in Personal Injury law have the technical expertise and a wealth of experience to win you the compensation you deserve.

            Read More

    • Public Liability
          • Public Liability

            Our specialist team in Personal Injury law is here to support you in accessing proper compensation if you have been injured because of someone else’s negligence. We have cutting edge expertise and experience in public liability claims to deliver the outcome you deserve.

            Read More

    • Abuse
          • Institutional Abuse

            We strongly believe that educational institutions must be held accountable when failing to protect children while in their care. If you have experienced institutional physical or sexual abuse, our specialist team in Personal Injury law is here to support you with compassion and offer our technical expertise and experience to deliver the best outcome in your case.

            Read More

    • Workers Compensation
          • Workers Compensation

            When you sustain an injury or illness because of work, you may be entitled to  compensation. Our specialist team in Personal Injury Law is here to support you with compassion and understanding with the right advice. We have substantial technical expertise to deliver the best possible outcome from your claim.

            Read More

    • School Negligence
    • I Need Help
          • Not Sure where to start?

            Hello, I’m Jade. I’m here to help you with a quick discovery call that will help us better understand your legal concerns. This way, I can connect you with the lawyer who is best suited to assist you with your situation.

            Your well-being is important to us, and we’re here to support you every step of the way.

            Call me on 02 4050 0330 or email admin@conradcurrylaw.com.au

    • Wills & Estate Planning
          • Wills and Estates

            When we provide advice on estate planning, we believe  in giving advice on options to mitigate the risks of litigation by potentially unhappy family members and protecting your assets from claims. Our legal team is here to support you and address your concerns regarding your estate planning. We have immense experience in these matters, providing you with advice and representation for your unique situation and delivering the best outcomes for your case.

            Read More

    • Powers of Attorney
    • Contest A Will
          • Contest A Will

            We have immense experience and specialised knowledge in family provision and wills disputes Where you have not been properly and adequately provided for under a will or where you suspect that the person making the will may not have had capacity or exercised their own free will, you need a lawyer with extensive experience and expertise. Our team of Lawyers will  provide you with advice and representation for your unique situation and deliver the best outcomes for your case.

            Read More

    • Probate & Deceased Estates
    • Enduring Guardian
    • Family Provision
    • I Need Help
          • Not Sure where to start?

            Hello, I’m Jade. I’m here to help you with a quick discovery call that will help us better understand your legal concerns. This way, I can connect you with the lawyer who is best suited to assist you with your situation.

            Your well-being is important to us, and we’re here to support you every step of the way.

            Call me on 02 4050 0330 or email admin@conradcurrylaw.com.au

    • Other Services Overview
          • Conrad Curry Can assist you with a variety of services

            Our solicitors are highly experienced in providing you with expert legal advice and will keep you informed every step of the way. It’s good to know that our firm is trusted and effective with a high success rate.

            Read More

    • Professional Negligence
          • Professional Negligence

            We rely on professionals in all aspects of our lives to provide us with proper advice on which to make decisions about our financial and legal affairs. When you are let down by poor advice the results can be devastating.  We are here to support you in your claim for compensation with clarity, guidance and the right advice to achieve the outcome you deserve.

            Read More

    • Malicious Prosecution
          • Malicious Prosecution

            We believe in standing up for those people who are falsely accused and prosecuted. Our experienced legal team is here to support you with compassion and provide you with clarity, guidance, and the right advice in your claim for compensation.

            Read More

    • General Litigation
    • I Need Help
          • Not Sure where to start?

            Hello, I’m Jade. I’m here to help you with a quick discovery call that will help us better understand your legal concerns. This way, I can connect you with the lawyer who is best suited to assist you with your situation.

            Your well-being is important to us, and we’re here to support you every step of the way.

            Call me on 02 4050 0330 or email admin@conradcurrylaw.com.au

    • What to Expect
          • What to expect

            We are your law firm for life. You can count on us for the best legal advice and compassionate support. We understand the challenges you are facing and we want you to know that you don’t have to navigate the often daunting process alone. We are here when you need us. Let us help you find your way forward with our empathetic and efficient approach. Contact us. You can call us on (02) 4050 0330 for a free initial no-obligation consultation or book an appointment online for an in-person consultation or an online video appointment.

  • No Win/No Fee Options

Notional Estate and Family Provision Orders

What is Notional Estate?

A person’s last Will dictates how their estate assets are to be distributed upon their death.

However, estate assets only include property which is owned solely by the deceased person as at the date of their death. Property held jointly with another or others (e.g. money held in joint bank accounts and real estate held by way of joint tenancy) and certain financial interests (e.g. beneficiary interests under a trust or in superannuation) are not considered estate assets.

Under the Succession Act 2006 (NSW), the Supreme Court of New South Wales has the power to  ‘designate’ non-estate assets as ‘notional estate’.

Notional Estate and Family Provision Orders

Family Provision Orders can be made by the Court using a deceased person’s notional estate. Such orders may be made in favour of an eligible person who did not receive adequate provision under the estate. Examples of eligible persons include: current and former spouses, de facto or same sex partners, children, people who were members of the deceased’s household and dependent including grandchildren.

Notional Estate Orders

The Court can only make Notional Estate Orders where a deceased person left no estate, the estate was insufficient to properly provide for an eligible person, or provision ought not be made entirely out of the estate because there are other entitled persons or special circumstances exist.

The Court may make Notional Estate Orders in respect of property and/or financial interests:

  1. Transferred to beneficiaries during the ordinary course of estate administration;
  2. Transferred or disposed of during the deceased person’s lifetime (‘Relevant Property Transactions’) – outlined further below;
  3. Not directly owned by the deceased person but over which they exercised some form of control (superannuation, life insurance or family trust); or
  4. Which could have formed part of a deceased person’s estate had they exercised a power to deal with it before their death.

Relevant Property Transactions

A ‘Relevant Property Transaction’ occurs in circumstances where a person either has done an act or failed to do an act, with the result that property of a deceased person is subsequently held by another person or subject to a trust.

Where a deceased person has been given full valuable consideration (e.g. an amount fairly equivalent) in exchange for an act or failure to act, a Relevant Property Transaction does not occur. For example, if a person sells property to a family member for market value, the sale does not constitute a Relevant Property Transaction.

Example One

Kate recently passed away. At the time of her death, Kate was married to Brian who was her second husband. She had a son Evan from her first marriage. Kate owned a house as joint tenants with Brian worth about $2M, but she had very few other assets.

Under the rule of survivorship, Kate’s interest in the property passed automatically to Brian upon her death.

Had Kate arranged for the joint tenancy to be severed, she would have owned the property with Brian as tenants-in-common at the time of her death. The result being that her interest in the property would have formed part of her estate and ultimately been available in part for Evan under her will.

Kate’s failure to exercise her power to sever the joint tenancy immediately prior to her death would be considered a Relevant Property Transaction. If Evan brought proceedings for Family Provision Orders, Kate’s interest in the property could be designated as notional estate by the Court, allowing it to be distributed in part to Evan for his further maintenance, advancement and education in life.

Example Two              

James held a superannuation policy which incorporated a large death benefit. James died suddenly having nominated his wife under his superannuation policy.

The death benefit can be designated as notional property by the Court where, for example, the court is satisfied that a Family Provision Order ought to be made in favour of James’ children.

Here, the Relevant Property Transaction would be James’ failure to substitute his children in place of his wife under his superannuation policy immediately prior to his death.

Timing of Relevant Property Transactions

Even where the Court is satisfied that a deceased person entered into a Relevant Property Transaction, the Court can only make an order designating property as notional if the transaction happened:

  1. Within three (3) years of the deceased’s death, where the transaction was entered into with the intention of limiting or denying provision to an eligible applicant;
  2. Within one (1) year of the deceased’s death, if they had a moral obligation to adequately provide for an eligible applicant, provided the deceased’s moral obligation to the applicant was substantially greater than any moral obligation on behalf of the deceased to enter into the transaction; or
  3. On or after the date of death of the deceased person.

Final Comments

There are other notional estate orders available, aside from those relating to Relevant Property Transactions. Be sure to contact a solicitor if you believe certain property should have formed part of a deceased person’s estate.

Proceedings in respect of family provision orders (including notional property orders) must be commenced in New South Wales within one (1) year of a deceased person’s death, unless there are extenuating circumstances. You should instruct a lawyer well before this time period lapses.

If you would like to know more about matters relating to notional estate orders or family provision, we would be pleased to speak with you to advise you about your options. You can either book an appointment online or call us on (02) 4050 0330 for an obligation-free consultation.

Recent Articles

Stay Updated With Legal News
Subscribe To Our Newsletter

This field is for validation purposes and should be left unchanged.