Are joint assets available as part of the deceased's estate?

Published 16 Nov 2017

Author: David Cossalter

A successful family provision claim enables you to receive a larger share of your loved one's estate if you feel they have not adequately considered your needs in their will. But family provision claims aren't always sensible to pursue.

For example, proceeding with a case may not be worthwhile if the estate is simply too small for the claimant to receive a larger share of the available assets.

However, some estates are only modest because the deceased's most prized possessions were jointly owned with other individuals. This is common when one spouse in a marriage dies, but both partners are listed as shared owners of property, stocks and other investments.

But can you stake a claim on these assets during an inheritance dispute? In NSW, eligible people may be able to convince the courts to allow jointly owned assets to be considered for family provision claims.

Let's explore the relevant legislation to see what rights you have when contesting a will.

The Succession Act and 'notional' estates

Under the Succession Act 2006 (NSW), judges have the power to widen the scope of what assets are included within a deceased person's estate.

One of the reasons legislators allow this is to prevent people from transferring ownership of their assets before they die to escape a moral obligation to make adequate provisions for loved ones.

These assets - which may include jointly owned homes or bank accounts - can be deemed the 'notional' estate of the deceased. This means the property isn't officially part of the individual's estate, but it will count as such for the purpose of settling claims.

In other words, you could be awarded significantly more from a family provision claim than was originally available for distribution.

Will my notional estate claim succeed?

The success of a family provision claim isn't guaranteed, although research from the University of Queensland and other academic institutions revealed that approximately three-quarters of plaintiffs win their case.

Nevertheless, notional estate claims do face various challenges. A key consideration for the courts is the inherent competing interest of the joint owner of the asset.

The joint owner typically receives the deceased's share of the asset upon their death, so a judge must be convinced that a plaintiff's case warrants the property's redistribution.

The courts must also weigh the testamentary desires of the deceased. Many people jointly share assets with a spouse or other loved one, and leaving an estate to a surviving partner is a strong indication of their final wishes.

If you plan to pursue a family provision claim for a notional estate, please contact Gerard Malouf & Partners Will Dispute Lawyers to discuss your case.

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