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Deceased Transferred Property Before Their Death (NSW)

Lawyers are often asked what can be done in a contested estates matter where the deceased transferred property before their death. It is common for a person to give away property prior to their death in an attempt to prevent family members from pursuing certain assets on the basis they have not been adequately provided for in the will. This article examines what can be done where the deceased transferred property before their death.

Why would a deceased transfer property before their death?

Traditionally, property that does not form part of an estate upon the death of a testator cannot be claimed during any dispute that arises over the provisions of the will. However, in New South Wales, the concept of a “notional estate” has now been adopted into law. This means that assets that have been disposed of in the years immediately before a person’s death may be included in the deceased’s estate in some circumstances. This means that attempts to avoid having an asset included in one’s estate by giving it away may not always be successful.

Notional estates

Section 80 of the Succession Act 2006 provides for notional estate orders. The court may make a notional estate order in respect of designated property if the court is 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 with the intention of denying or limiting provision being made out of the estate for a person 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 when the deceased had a moral obligation to make adequate provision for the proper maintenance and advancement in life of a person who is eligible to make a family provision claim where 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 transferred property before their death

If a notional estate order is made under section 80, the property which was given away before the testator’s 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 (including the property that was transferred by the deceased before their death).

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 persons to make a family provision claim is set out in section 58 of the Succession Act. A 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 of making the order.

Seek legal advice if the deceased transferred property before their death

If you are involved in a matter where the deceased transferred property before their death, seek legal advice as soon as possible. The contested estates lawyers at Armstrong Legal will be able to provide you with thorough and timely advice 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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