Notional Estate Claims

As we understand from Family Provision claims, the Court may make a Family Provision Order (FPO) based on what the Court deems to be adequate provision from the assets of the Estate.

In circumstances where the Estate does not have sufficient funds to satisfy the Family Provision Order, or there are special circumstances, the Court may ‘claw back’ any property that was disposed by the deceased individual before their death. 

However, one of the three elements of section 80(2) of the Succession Act 2006 (NSW) must be satisfied before the Court orders the ‘claw back’: 

a) the transaction took effect within 3 years of the deceased’s death and was entered into with the intention, wholly or partly, of denying or limiting provision being made out of the Estate for the maintenance, education or advancement in life of any person who is entitled to apply for a FPO;

 b) the transaction took effect within one year of the deceased’s death and was entered into when the deceased had a moral obligation to make adequate provision for the proper maintenance, education or advancement in life of any person who is entitled to apply for a FPO which was substantially greater than any moral obligation of entering into the transaction;

c) a transaction that took effect or is to take effect on or after the deceased’s death. 

At present, New South Wales is the only Australian state that provides for notional estate claims. Here at Green & Associates Solicitors, our experienced lawyers will work with you so you understand what a Family Provision order (FPO) means for you. You may contact us on (02) 8080 7585 for assistance.

Green & Associates Solicitors Experience and Success 

• We have acted on both sides of these claims, bringing them into an estate to be dealt with according to the terms of a Will, and keeping them out so as to protect a client’s right to the entirety of them;
• We have acted against superannuation trustees and other claimants in superannuation and life insurance proceeds disputes;
• We have forced trustees to comply with binding death benefit nominations and to disregard them in some circumstances and pay our clients instead;
• We have succeeded in bringing claims over other assets held by trustees or other entities, including on constructive rather than express trusts, and for complicated business and commercial assets behind multi-layered structures

We also provide in-house advice to companies on a range of matters, including:

• employment-law issues (i.e. enforcing or dispute a restraint of trade clause for previous or new employees);
• compliance and regulatory issues (i.e. licencing and underquoting breaches)
• criminal matters;
• property matters;
• defamation proceedings; and
• all types of commercial matters (i.e. drafting shareholder agreements).