Unravelling Gifts in the Context of a Family Provision Claim
Gift giving is a right we all have. While the act of gift-giving itself does not generally attract legal implications for the parties, legal considerations arise in certain circumstances, such as conditional gifts, business transactions, and where particular gifts carry tax implications. In our experience, the greatest demand for legal advice in respect of gifts arises in the context of inheritance and succession law.
In New South Wales, making a gift of property by a testator (Will maker) before passing away will affect the value of the gift giver’s estate. In some circumstances it may be designed to deprive certain beneficiaries of the property under the estate or limit the property available should a dispute arise in relation to the estate.
What is a Family Provision Order?
In NSW a family provision order is an order made by the Court under section 59 of the Succession Act NSW providing provision or additional provision for a person eligible to bring a claim for provision or additional provision out of a deceased’s estate, having regard to a non-exhaustive list of factors under section 60 of the Act if the Court is satisfied that adequate provision was not made for the person.
Such factors include the relationship between the claimant and the deceased, the financial needs and circumstances of the claimant, and the nature and extent of the estate.
Related: https://conradcurrylaw.com.au/family-provision/
What is a Notional Estate Order?
A notional estate order is an order by which the Court designates certain property that was previously held by the deceased as property that is no longer legally held by the deceased at the date of his or her to satisfy a family provision order.
People are generally free to do what they wish with their property. However, property may be clawed back where it is proven the deceased person entered a transaction to dispose of property (including by way of gift) within 12 months of their death without having received proper payment or consideration or within 3 years in circumstances where the transaction (including a gift) was designed to limit the amount of property available to satisfy any claim on the estate. The transaction is known as a relevant property transaction.
Related: Notional Estate and Family Provision Orders – The Law Office of Conrad Curry
Disputing an Estate involves many legal complexities, particularly when the deceased had disposed of property (including by way of gift) before their death. It is highly recommended that you speak with a solicitor experienced in this area of law. Reach out to our team for an obligation–free discussion.
See our case study here: https://conradcurrylaw.com.au/case-note-squire-v-squire-family-provision-claim/
