Family provision claim forces notional estate

Published 14 Jun 2016

Depending on the way people contest a will in NSW and the nature of their appeal, there are a number of different conditions that affect the way the estate is provisioned. Some of these can also often seem at odds with each other, demanding more from an estate that what is actually available.

A recent case illustrated how complex contesting a will can get, reinforcing why hiring an experienced lawyer is imperative to reaching a favourable outcome. The following example involves a de facto relationship, a family provision claim and the need for a notional estate to ensure the needs of all parties were met.

How can complex inheritance disputes impact the process?

The one feature of this case that made the process simpler was the fact there were only two parties in disagreement over the respective will. This meant that, while there was still a clash over the way the estate had been provisioned, the small estate didn’t have to be stretched too far.

In the example of smaller estates such as this one, a notional estate works to widen the available assets and ensure all beneficiaries and claimants can be adequately provided for. This can expand to include assets such as property that, while not owned outright by the deceased, are still under their control in some manner. Usually, this includes structures or land tied up in either a family trust or superannuation fund.

The plaintiff in this particular case is the son of the deceased and was making a claim for notional estate to be applied to the deceased’s assets. The only beneficiary named in the will was a woman with whom the deceased was in a de facto relationship – the defendant in this case.

The reason this case needed to include a notional estate rather than a family provision claim for existing assets is because, at the time of judgement, the originally small cash assets were no longer available for further provision. In this respect, the asset pool needed to be expanded to include property that was jointly owned by the defendant and the deceased.

Because there was no clear reason for the plaintiff to be left out of the original will, the claims had a much greater weight to them.

To find out more about contesting a will for smaller estates, contact the team at Gerard Malouf and Partners.

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