Laws in each state of Australia allow a
family member or certain other dependants to challenge a deceased's will.
Such a claim is generally known as ether a family provision application
or a testator's family maintenance (TFM) claim. Whether a TFM
claim is successful depends upon a range of matters – regardless of the outcome
however, TFMs can be costly and emotionally debilitating for all parties involved.
Historically in
all Australian states, a TFM claim could only relate to property that was owned
by the deceased on the date of their death, putting certain property – such as
trust assets or those owned by a spouse - outside the reach of a TFM claim.
In 2005, NSW
introduced 'notional estate' provisions, which essentially enable a court to
treat certain property that is not legally part of a deceased estate, as being
deemed to be included and thereby open to attack by a TFM. These
provisions apply to NSW domiciled persons and any property located within NSW.
For property to be part of a notional estate, ‘a relevant property transaction’
must have occurred, which in broad terms requires a positive act or omission
that results in property being owned by someone other than the deceased. The
offending transaction must have taken place within certain specified times
before the date of death of the will maker.
All Australian
states have been considering adopting similar notional estate provisions to
NSW. The only other state to announce their likely approach has been Victoria.
In October 2013, the Victorian Law Reform Commission (VLRC)
released its final report on Victoria's succession laws, and recommended that
the NSW notional estate provisions should not be adopted in Victoria.
In September 2019 the equivalent body in Tasmania also rejected implementation of a notional estate regime in that state, unless and until there are uniform national rules introduced
In September 2019 the equivalent body in Tasmania also rejected implementation of a notional estate regime in that state, unless and until there are uniform national rules introduced
This said, even
otherwise where a state’s succession laws do not include notional estate
provisions, there may still be means to attack assets not otherwise forming
part of a deceased’s estate, including because of poor planning or due to sham,
contrived or artificial transactions.
Until next week.
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