Deceased assets, my father has passed and has left the bulk of his estate to my mother. However, we believe that there are some assets that haven’t been disclosed and believe that he may have had a mistress that has benefited from these assets. How do I go about finding this out and if this is the case am I able to contest the Will?
If you believe that assets haven’t been included in your father’s Estate it is possible that your father may have transferred these assets to his mistress or another entity prior to his death.
Fortunately, the Succession Act of New South Wales has provisions in place to ensure that assets distributed by a deceased prior to their death can be used to make payment of a successful family provision claim in certain circumstances. When this occurs it is referred to as a “Notional Estate Order”. The main purpose of Notional Estate Orders is to ensure that assets are returned to the deceased Estate that were distributed before or after the death of the deceased with the intention of defeating family provision claims.
The relevant property transactions that are caught by the Succession Act include property transactions where a person, directly or indirectly, does or does not do any act that results in property being:
(a) Held by another person (whether or not as trustee); or
(b) Subject to trust,
and full valuable consideration is not given to the person for doing or not doing the act.
When can a Notional Estate Order be made by the Court?
The Court can only make a Notional Estate Order if there has been a successful application for a family provision order and the Court is satisfied that the property transaction consisted of one of the following transactions:
(a) Took effect within 3 years before the death of the deceased 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 family provision order,
(b) Took effect within one year before the death of the deceased person and was entered into when the deceased had a moral obligation to make adequate provision, by Will or otherwise, for the proper maintenance, education or advancement in life of any person entitled to apply for a family provision order and which moral obligation was substantially greater than any moral obligation of the deceased to enter into the transaction, or
(c) Took effect or is to take effect on or after the death of the deceased.
The Court will look at the intention of the deceased and whether it can be established that the intention was to wholly or partly deny or limit provision from the Estate to a person entitled to make a family provision claim.
What do I need to do?
If you believe that your father has distributed assets from his Estate with the intention of defeating or limiting a family provision claim then you need to seek expert legal advice on your entitlement to make a family provision claim and an application for a Notional Estate Order.
If you have been left out of a Will you need to speak the expert lawyers at Sydney Wills Lawyers on making a family provision claim. We specialise Wills and Estate Law and pride ourselves on our open and honest communication with client’s.
Graeme Heckenberg is the Principle lawyer of Sydney Wills Lawyers with over 25 years experience
To see if you have a claim, make an appointment today – first 20 minutes consult is free.
Call our Macquarie Street Office on 02 9221 2779 or email firstname.lastname@example.org