With the New South Wales Supreme Court having recently been charged with considering the adequacy of provision from the estate of the late Neville Wran (view the article), it is timely to discuss the law in relation to notional estate claims by aggrieved family members and other eligible persons.
What is notional estate?
Notional estate provisions in New South Wales allow certain property that is not part of the deceased person’s actual estate to be designated as notional estate to satisfy a successful claim for family provision, or pay the costs of family provision proceedings.
Estate property usually refers to all legal interests a deceased had in property, such as real estate, monies on deposit with a financial institution, shares and other securities, motor vehicles and other chattels, furniture and personal effects.
Estate property may not necessarily include a deceased’s interest in superannuation, family and other discretionary trusts, real estate held as a joint tenant with another person, or property which was disposed of within a defined period where no consideration was paid or the transaction was carried out in an effort to deprive possible claimants of the property. It is these types of interests and transactions to which the Court might focus its attention when considering whether to make a notional estate order.
When can a notional estate order be applied?
The court can only make a notional estate order if it is satisfied that:
- the deceased person left no estate, or
- the deceased person’s estate is insufficient to make a family provision order, or any order as to costs, that the court thinks should be made, or
- provision should not be made wholly out of the deceased person’s estate because there are other people entitled to apply for family provision orders or because there are special circumstances.
Case Study: The Estate of the late Hon. Neville Wran
In recent proceedings commenced in the Supreme Court of New South Wales by Mr Wran’s children, Glenn, Harriet and Hugo Wran, and Mr Wran’s god-daughter, Helen De Poortere, orders have been sought among other things to designate certain property outside of Mr Wran’s actual estate as notional estate for the purposes of the family provision claim. Mr Wran’s estate was sworn in by the executors for the purposes of Probate at between $700,000 and $1.6 million. However, the late Mr Wran’s interests in non-estate property is thought to be worth some $40 million and may include interests in superannuation, family and other discretionary trusts and real estate held as a joint tenant.
We will follow with interest the reasoning of the Court in dealing with Mr Wran’s notional estate.
Family provision claims are within an extremely specialised field of law. As such you need to ensure you have the very best legal advice and a lawyer who has extensive experience.
Our estates team has represented numerous clients in all aspects of family provision matters. We offer confident and considered advice in achieving the best outcomes for our clients.
If you have been inadequately provided for under a will, or you would like to update your will, please contact our estates team for timely assistance.