Family Provision Applications and Notional Estates

As mentioned in a number of recent posts, one of the ways in which a disgruntled beneficiary can challenge a person's will is by making an application to the court for further and better provision from the estate.

Historically, in all Australian jurisdictions, courts have only been able to make further provision for a beneficiary out of the assets that directly form part of the deceased’s estate.

In New South Wales however, special rules have been implemented that allow the courts to make orders in relation to assets that do not in fact form part of a deceased’s personal estate.

In many respects, the rules are analogous to the bankruptcy legislation in that will makers who take steps to remove assets from their personal name leave those assets exposed to be 'clawed back' into the estate for the purposes of family provision applications made within 3 years of the date of their death.

While the rules apply to anyone living in New South Wales at the date of death, they also potentially apply where the will maker has any assets connected with New South Wales (including shares in companies whose registered office is located there). While there have to date been very few cases that have applied the notional estate provisions, we are seeing an increasing number of clients implementing specific strategies to reduce the risk of the rules applying to their estate plan.

Challenging a Will under a Family Provision Application

A recent post listed the five main ways in which a will can be challenged – see - Ways to contest a will

One of the aspects listed was the ability to challenge a will due to the will maker’s failure to make adequate provision for certain beneficiaries.

The laws underpinning family provision applications are often referred to as an example of the courts applying 'The Vibe', as popularised in the classic Australian movie 'The Castle' -see - The Castle (1997 Australian film) and It's the constitution. It's Mabo. It's justice. It's law. It's the vibe....

Certainly family provision applications are by their very nature extremely subjective and therefore often turn almost entirely on the court's interpretation of the factual matrix.

This said, there are a number of key components to a family provision application, including:

1. Before a person can make an application for further provision, they must be within a defined category set out under the legislation:
1. Generally, children (including adult children), current spouses or anyone that is financially dependent on the will maker are able to make an application for further provision;
2. There are other potential categories other than those listed above including in certain situations, stepchildren and de facto spouses (even where the will maker is also lawfully married);
2. The test then applied by a court is to determine whether a person within the defined category has received adequate provision from the will maker’s estate for their proper maintenance and support, as determined by the court in its discretion;
3. If a court determines that adequate support was not provided, it then can make such further provision as it again determines in its discretion; and
4. One of the key aspects of family provision applications is that generally it is only the assets that form part of the will maker’s personal wealth that can be reallocated by a court.