What does the concept of a notional estate mean for contesting a will?

Published 02 Feb 2016

Author: Garbis Kolokossian

There are a number of conditions that can define the value of an estate when people contest a will. In some cases, benefactors may not be provided for sufficiently, either due to inadequate provisions in the document or simply because an estate's value wasn't significant enough to do so.

In NSW, the concept of a notional estate can be used to readdress these concerns in the event that people feel an estate was undervalued or doesn't provide enough to support them. Broadly speaking, this process allows for a range of assets not normally considered in the valuation of an estate to be included, ensuring all benefactors are provided for accordingly.

What is a notional estate?

The process of addressing a family provision claim through a notional estate is unique to the state of NSW and is specific to this type of contesting wills claims.

Usually, when an estate is being valued, only a certain selection of assets will be considered, which can leave some family members without adequate provisions in cases where this total is low.

In most cases, an estate that is distributed with a will only includes assets which were held at the time of a person's death. When a provision from a notional estate is called, it expands to include assets that weren't solely held in their name.

What assets do these claims include?

The key point of differentiation between usual estate distribution and a family provision claim is that this includes assets that aren't usually part of an estate. This can include wealth held in superannuation funds if they are deemed to be necessary in ensuring all parties are adequately provided for.

Notional estate claims can also affect property ownership, provided a range of conditions are met. In some cases, this may even include property that a person never solely owned, but was instead part of a trust or superannuation fund.

However, there are certain conditions that can prevent this from happening, such as if the property needs to be broken up in manner that the court deems to be unreasonable. On top of this, the property's value must be sufficient to actually account for the family provision claim.

What should you do in these cases?

The complex nature of family provision claims that lead to the creation of a notional estate means people are advised to contact experienced contesting wills lawyers.

The lawyers at Gerard Malouf and Partners operate on a no win no fee basis. Contact the team today to find out more.

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