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Deceased Made A Gift of Property

Lawyers are often asked what can be done in a contested estates matter where the deceased made a gift of property before their death. It is common for a person to give away assets prior to their death to try to prevent family members from pursuing certain assets on the basis the deceased has not adequately provided for them. This article examines what can be done where the deceased made a gift of property before their death.

Why Would A Deceased Make a Gift of Property?

Traditionally, property that does not form part of an estate upon the testator’s death cannot be claimed if a dispute arises over the provisions of the will. However, in New South Wales, the legislation provides for notional estate orders. A notional estate order can be made where a deceased made a gift of property in the years immediately before their death in some circumstances. This means that attempts to avoid having an asset included in one’s estate by giving it away to someone in one’s final years may not always be successful.

Notional Estates

Section 80 of the Succession Act 2006 sets out the law on notional estate orders. The court may make a notional estate order for designated property if satisfied that the deceased entered into a transaction in any of the following circumstances:

  • Where the transaction occurred within three years of the deceased’s death and was entered into in order to deny or limit provision being made out of the estate for someone who is entitled to apply for a family provision order;
  • Where the transaction occurred within one year of the deceased’s death and was entered into at a time the deceased had a moral obligation to make adequate provision for a person’s proper maintenance and advancement in life and that obligation was substantially greater than any obligation they had to enter into the transaction;
  • Where the transaction is to take effect after the deceased’s death.

Executing A Will Where The Deceased Made a Gift of Property Before Their Death

If a notional estate order is made under section 80, the assets that the deceased made a gift of before their death will be included in the deceased estate.

If there is no further challenge to the will, the deceased estate will proceed to be distributed according to the terms of the will or according to the law of intestacy, as the case may be. If the deceased left a will but the will did not refer to the assets that have been transferred, that property will form part of the remainder of the estate.

If there is a challenge to the will in the form of a Family Provision Claim, the court will decide how the estate should be distributed. Where the deceased made a gift of property before their death, this property will be included in the estate that is divided. 

Family Provision Claims

A family provision claim is a claim by a person such as the deceased’s child or partner who feels that they have not been adequately provided for in the will. The right of certain classes of person (such as spouses and children) to make a family provision claim is set out in section 58 of the Succession Act. A family provision claim may be made up to 12 months from the date of the deceased’s death.

The court may make an order for family provision if adequate provision for the applicant’s advancement in life has not been made by the will of the deceased. The court may make whatever order it thinks ought to be made for the person’s maintenance, education or advancement in life given the facts known to the court at the time it makes the order. 

Seek Legal Advice If The Deceased Made a Gift of Property

If you are involved in a matter where the deceased made a gift of property before their death, seek legal advice as soon as possible. The contested estates lawyers at Armstrong Legal will be able to advise you thorough so that you can make the best decisions to achieve the outcome you desire.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

Fernanda Dahlstrom

This article was written by Fernanda Dahlstrom

Fernanda Dahlstrom has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Legal Practice. She has also completed a Master’s in Writing and Literature. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory and in family law in Queensland.

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