PART 3 NOTIONAL ESTATE ORDERS
Updates and background for this project (Digest)
Note.
This Part applies where, as a result of certain property transactions, property is not included in the estate of a deceased person or where property has been distributed from the estate of a deceased person. This Part enables the Court in limited circumstances to make an order designating property that is not included in the estate, or has been distributed from the estate, as “notional estate” of the deceased person for the purpose of making a family provision order under Part 2 in respect of the estate of the deceased person (or for the purpose of ordering that costs in the proceedings be paid from the notional estate).
Property may be designated as notional estate if it is property held by, or on trust for, a person by whom property became held (whether or not as trustee), or the object of a trust for which property became held on trust:
(a) as a result of a distribution from the estate of a deceased person (see section 30), whether or not the property was the subject of the distribution, or
(b) as a result of a relevant property transaction, whether or not the property was the subject of the transaction (see section 31), or
(c) as a result of a relevant property transaction entered into by a person by whom property became held, or for whom property became held on trust, as a result of a relevant property transaction or a distribution from the estate of a deceased person (see section 32), whether or not the property was the subject of the relevant property transaction.
Property may also be designated as notional estate if it is property:
(a) held by the administrator of the estate of a person by whom property became held as a result of a relevant property transaction or distribution referred to in paragraph (a)–(c) above and who has since died (known as the deceased transferee), or
(b) held by, or on trust for, a person by whom property became held, or for the object of a trust for which property became held on trust, as a result of a distribution from the estate of a deceased transferee,
whether or not the property was the subject of the relevant property transaction or the distribution from the estate of the deceased person or the deceased transferee (see section 33).
Section 43 enables the Court to replace property in the estate or notional estate of a deceased person that has been, or is proposed to be, affected by a family provision order with property offered in substitution for the affected property.
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3.1 Notional estate orders are orders issued by the Court which are intended to make available for family provision orders assets that are no longer part of the estate of a deceased person because they have been distributed either before or after the deceased’s death (either with or without the intention of defeating applications for family provision). Without legislative provisions allowing for notional estate orders, the Courts are unable to make family provision orders with respect to property that is no longer part of the deceased estate.
3.2 In New South Wales, notional estate provisions were introduced in 1982 in an attempt to deter people from avoiding their family provision responsibilities.1 The new provisions were the result of recommendations made by the New South Wales Law Reform Commission in 1977.2 Similar provisions may be found in England3 and the United States.4
3.3 In recommending the adoption of notional estate provisions, the National Committee noted that the provisions appeared to be working well in New South Wales.5 In considering the New South Wales provisions, the National Committee observed that a balance must be struck between competing considerations:
On the one hand the anti-avoidance provisions must ensure that it will be very difficult even for a very determined person to prevent a family provision order being made in respect of her or his estate. On the other hand, the anti-avoidance provisions must not:
• impede the normal lifetime activities of people;
• impede the normal administration of estates; or
• affect people who have received property from the person in respect of whose estate family provision is being sought except where the Court is satisfied that it is necessary and just to designate property affected by such a transaction available to satisfy a family provision application.6
3.4 The National Committee summarised the New South Wales provisions as being “designed to prevent avoidance while having the minimum possible collateral effects, and being fair to all concerned”.7
3.5 The National Committee decided to adopt the current New South Wales provisions with little change to their substance, preferring the more comprehensive New South Wales provisions to some simpler but less comprehensive proposals from New Zealand:8
The anti-avoidance provisions are complicated and not easy to understand. However, they have been very carefully worked out, and they form an efficient and effective means of ensuring that certain objectives are met.9
3.6 While little change has been made to the content of the provisions, there has been some change to their style and order to make them easier for practitioners and other users to follow.10
Division 1 Relevant property transactions
25 Definition
In this Part:
relevant property transaction means a transaction or circumstance affecting property and described in section 26 or 27.
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3.7 This is a machinery provision. The term “relevant property transaction” is employed in cl 26-28, 31-34, 40 and 41.
26 Transactions that are relevant property transactions
(1) A person enters into a relevant property transaction if the person does, directly or indirectly, or does not do, any act that (immediately or at some later time) results in property being:
(a) held by another person (whether or not as trustee), or
(b) subject to a trust, and full valuable consideration is not given to the person for doing or not doing the act.
(2) The fact that a person has entered into a relevant property transaction affecting property does not prevent the person from being taken to have entered into another relevant property transaction if the person subsequently does, or does not do, an act affecting the same property the subject of the first transaction.
(3) The making of a will by a person, or the omission of a person to make a will, does not constitute an act or omission for the purposes of subsection (1), except in so far as it constitutes a failure to exercise a power of appointment or disposition in relation to property that is not in the person’s estate.
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3.8 Clause 26(1) is intended to achieve the same effect as Family Provision Act 1982 (NSW) s 22(1) which refers to the person doing, directly or indirectly, or omitting to do, any act, as a result of which the property becomes held by another person (whether or not as trustee), or subject to a trust.
3.9 Clause 26(2) is based on Family Provision Act 1982 (NSW) s 22(3).
3.10 Clause 26(3) is based on Family Provision Act 1982 (NSW) s 22(7). It provides that the making of a will is not a prescribed transaction. In any event, the Court has the power, in making a family provision order, to override any disposition made by a will.
27 Examples of relevant property transactions
(1) The circumstances set out in subsection (2), subject to full valuable consideration not being given, constitute the basis of a relevant property transaction for the purposes of section 26.
(2) The circumstances are as follows:
(a) if a person is entitled to exercise a power to appoint, or dispose of, property that is not in the person’s estate and does not exercise that power before ceasing (because of death or the occurrence of any other event) to be entitled to do so, with the result that the property becomes held by another person (whether or not as trustee) or subject to a trust or another person (immediately or at some later time) becomes, or continues to be, entitled to exercise the power,
(b) if a person holds an interest in property as a joint tenant and the person does not sever that interest before ceasing (because of death or the occurrence of any other event) to be entitled to do so, with the result that, on the person’s death, the property becomes, by operation of the right of survivorship, held by another person (whether or not as trustee) or subject to a trust,
(c) if a person holds an interest in property in which another interest is held by another person (whether or not as trustee) or is subject to a trust, and the person is entitled to exercise a power to extinguish the other interest in the property and the power is not exercised before the person ceases (because of death or the occurrence of any other event) to be so entitled with the result that the other interest in the property continues to be so held or subject to the trust,
(d) if a person is entitled, in relation to a life assurance policy on the person’s life under which money is payable on the person’s death, or if some other event occurs, to a person other than the administrator of the person’s estate, to exercise a power:
(i) to substitute a person or a trust for the person to whom or trust subject to which money is payable under the policy, or
(ii) to surrender or otherwise deal with the policy, and the person does not exercise that power before ceasing (because of death or the occurrence of any other event) to be entitled to do so,
(e) if a person who is a member of, or a participant in, a body (corporate or unincorporate), association, scheme, fund or plan, dies and property (immediately or at some later time) becomes held by another person (whether or not as trustee) or subject to a trust because of the person’s membership or participation and the person’s death or the occurrence of any other event,
(f) if a person enters into a contract disposing of property out of the person’s estate, whether or not the disposition is to take effect before, on or after the person’s death or under the person’s will or otherwise.
(3) Nothing in this section prevents any other act or omission from constituting the basis of a relevant property transaction for the purposes of section 26.
(4) For the purposes of this Act, in the circumstances described in subsection (2)(b), a person is not given full or any valuable consideration for not severing an interest in property held as a joint tenant merely because, by not severing that interest, the person retains, until his or her death, the benefit of the right of survivorship in respect of that property.
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3.11 Clause 27(1) and cl 27(3) are based on the introductory paragraph in Family Provision Act 1982 (NSW) s 22(4).
3.12 The paragraphs in cl 27(2) are based on the paragraphs in Family Provision Act 1982 (NSW) s 22(4).
3.13 Clause 27(2)(b) is based on Family Provision Act 1982 (NSW) s 22(4)(b). The provision as it currently stands in New South Wales has been criticised for lack of clarity but cases have held that Family Provision Act 1982 (NSW) s 22(4)(b) applies to the situation where the deceased held an interest in property as a joint tenant and omitted to sever it.11 The National Committee considered that s 22(4)(b) needed to be “reworded and clarified” in light of existing case law.12 Paragraph (b) has, therefore, been reworded to make express reference to the deceased’s omission to sever an interest in property held as a joint tenant.13
3.14 Finally, in dealing with Family Provision Act 1982 (NSW) s 22(4)(b), the National Committee considered the question of what constitutes full valuable consideration for a person’s omission to sever an interest in property held as a joint tenant. In New South Wales, there is authority to suggest that the Court could conclude on the facts of the case that, in omitting to sever a joint tenancy, there flowed to the deceased (in the form of the right of survivorship) a fair equivalent for what the deceased would have received had he or she in fact severed the joint tenancy before death, and that, therefore, the deceased had received full valuable consideration for the omission.14 The National Committee decided that cl 27(4) should be inserted to overcome the effect of the New South Wales authority.15 The National Committee concluded that cl 27(4):
will prevent the mere retention of the right of survivorship from constituting full or any valuable consideration for not severing an interest in property held under a joint tenancy. However, where something in addition to the retention of the right of survivorship flows to the joint tenant from not severing that interest, the proposed provision will not prevent that additional benefit from amounting to valuable consideration.16
3.15 Clause 27(2)(f), which is based on Family Provision Act 1982 (NSW) s 22(4)(f), in its terms may be broad enough to cover some donationes mortis causa, that is, conditional gifts given in contemplation of the death of the deceased and that take effect on the deceased’s death.17
28 When relevant property transactions take effect
(1) For the purposes of this Act, a relevant property transaction is taken to have effect when the property concerned becomes held by another person or subject to a trust or as otherwise provided by this section.
(2) A relevant property transaction consisting of circumstances described in section 27(2)(a), (c) or (d) is taken to have been entered into immediately before, and to take effect on, the person’s death or the occurrence of the other event resulting in the person no longer being entitled to exercise the relevant power.
(3) A relevant property transaction consisting of circumstances described in section 27(2)(b) or (e) is taken to have been entered into immediately before, and to take effect on, the person’s death or the occurrence of the other event referred to in those paragraphs.
(4) A relevant property transaction that involves any kind of contract for which valuable consideration, though not full valuable consideration, is given for the person to enter into the transaction is taken to be entered into and take effect when the contract is entered into.
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3.16 Clause 28(1) is based on Family Provision Act 1982 (NSW) s 22(2).
3.17 Clause 28(2) is based on Family Provision Act 1982 (NSW) s 22(5).
3.18 Clause 28(3) is based on Family Provision Act 1982 (NSW) s 22(5).
3.19 Clause 28(4) is based on Family Provision Act 1982 (NSW) s 22(6).
Division 2 When notional estate orders may be made
3.20 This division, which identifies the circumstances in which a notional estate order may be made, contains the main notional estate provisions in cl 30, 31, 32 and 33.
29 Notional estate order may be made only if family provision order or certain costs orders to be made
Note. Section 14(5) enables a family provision order to be made in relation to property designated as notional estate of a deceased person. Section 49 enables the Court to order that costs be paid out of the notional estate of a deceased person.
(2) The Court must not make an order under subsection (1)(b) for the purposes of an order that the whole or part of an applicant’s costs be paid from the notional estate of the deceased person unless the Court makes or has made a family provision order in favour of the applicant.
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3.21 This provision, which has no antecedent in the New South Wales Act, is intended to limit the circumstances in which the Court may make a notional estate order for the purpose of ordering that costs be paid from the notional estate of a deceased person. This is achieved by acknowledging, in cl 29(1), the circumstances in which a notional estate order may be made18 and then, in cl 29(2), limiting the circumstances in which a notional estate order may be made for the purpose of an order for costs of the proceedings. Clause 29(2) prevents the Court from ordering that the costs of an applicant be paid from the notional estate of a deceased person unless the Court has made a family provision order in favour of the applicant.
3.22 Clause 29(2) is intended to overcome a situation that arose in a 1992 case where there was virtually no property in the estate, but a large sum potentially available in the notional estate of the deceased. The Court held that, because it was not satisfied that an order for provision should be made, it did not have the power to designate property as notional estate to meet the costs of the successful defendant in the matter.19 This left the successful defendant to bear her own costs, a situation the Court did not consider desirable:
The merits of the situation would require that the costs of the defendant be paid out of the [notional estate], but I do not consider that I have the power to order that.20
3.23 The National Committee, in recommending that it should be possible for the costs of parties other than the applicant to be met from the notional estate of the deceased if an applicant is unsuccessful, concluded, in respect of the unsuccessful applicant, that “it should not be possible for the court to make a notional estate order to enable the unsuccessful applicant’s costs to be paid out of the deceased person’s notional estate”.21
3.24 Apart from the above provision, the National Committee has decided to leave an unfettered discretion to the Court in relation to the awarding of costs in family provision proceedings.22
3.25 This clause allows the Court to designate as notional estate property of the deceased estate that has already been distributed. It is based on Family Provision Act 1982 (NSW) s 24.
3.26 Note there is no requirement for “special circumstances” before the Court can make an order such as is required in cl 32.
31 Notional estate order may be made where estate affected by relevant property transaction
(1) The Court may, on application by an applicant for a family provision order or on its own motion, make a notional estate order designating property specified in the order as notional estate of a deceased person if the Court is satisfied that the deceased person entered into a relevant property transaction before his or her death and that the transaction is a transaction to which this section applies.
Note. The kinds of transactions that constitute relevant property transactions are set out in sections 26 and 27.
(2) This section applies to the following relevant property transactions:
(a) a transaction that took effect within 3 years before the death of the deceased person and was entered into with the intention, wholly or partly, of denying or limiting provision being made out of the estate of the deceased person for the maintenance, education or advancement in life of any person who is entitled to apply for a family provision order,
(b) a transaction that took effect within one year before the death of the deceased person and was entered into when the deceased person had a responsibility to make adequate provision, by will or otherwise, for the proper maintenance, education or advancement in life of any person who is entitled to apply for a family provision order,
(c) a transaction that took effect or is to take effect on or after the deceased person’s death.
(3) Property may be designated as notional estate by a notional estate order under this section if it is property that is held by, or on trust for:
(a) a person by whom property became held (whether or not as trustee) as the result of a relevant property transaction, or
(b) the object of a trust for which property became held on trust as the result of a relevant property transaction,
whether or not the property was the subject of the relevant property transaction.
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3.27 This clause is based on Family Provision Act 1982 (NSW) s 23. It allows the Court to designate as notional estate property that has been transferred during the course of the lifetime of the deceased by means of a “relevant property transaction”. Relevant property transactions are described in cl 26 and cl 27, above.
3.28 Clause 31(2)(b) differs from the equivalent New South Wales provision,23 in that it refers to the deceased person’s “responsibility to make adequate provision” rather than the deceased person’s “moral obligation to make adequate provision”. The wording in this provision better reflects the terminology adopted elsewhere in the model provisions, for example, in cl 7.
3.29 Note there is no requirement for “special circumstances” before the Court can make an order such as is required in cl 32.
3.30 This clause allows the Court to designate as notional estate property (in the hands of a “transferee”) that it could have designated as notional estate under other provisions of the Model Bill, but where that property has already been transferred by the transferee to another person. The impact upon this other person (a third party) is the reason why special circumstances are required to warrant the making of an order.24
3.31 The clause is based on Family Provision Act 1982 (NSW) s 25. However, cl 32(1)(a)(ii), and the references to the “deceased transferee” were inserted to overcome the effect of the decision in Prince v Argue.25 In that case, it was held that the Court could not make a notional estate order affecting the property of a deceased transferee since no property could then be held on trust for them. The effect of this decision has been dealt with by the National Committee in relation to this clause and cl 33.
3.32 The decision in Prince v Argue potentially restricts the Court’s ability to make notional estate orders in respect of property that is held by a subsequent transferee, where the original transferee has died. The National Committee observed that the Court’s ability to make a notional estate order in relation to a subsequent transferee required it to be satisfied that it had the power to make a notional estate order in relation to the property held by the original transferee. The National Committee considered that, in cases where the original transferee has died, the Court’s power to do this was now doubtful in light of the decision in Prince v Argue and accordingly recommended changes to cl 32.26
33 Notional estate order may be made where property of deceased transferee’s estate held by administrator or distributed
(1) The Court may, on application by an applicant for a family provision order or on its own motion, make a notional estate order designating property specified in the order as notional estate of a deceased person if the Court is satisfied that:
(a) immediately before the death of a person (the deceased transferee), it had power under this or any other section of this Act, to make a notional estate order designating property held by, or on trust for, the deceased transferee as notional estate of the deceased person, and
(b) the power did not arise because property became held by the deceased transferee as trustee only, and
(c) in the case of property referred to in subsection (2)(b), there are special circumstances that warrant the making of the order.
(2) The following property may be designated as notional estate by a notional estate order under this section, whether or not it was the property the subject of the relevant property transaction or distribution from which the Court’s power to make such an order arose:
(a) if administration has been granted in respect of the estate of the deceased transferee—property that is held by the administrator of the estate of the deceased transferee in his or her capacity as administrator of the estate of the deceased transferee, or
(b) if all or part of the estate of the deceased transferee has been distributed—property that is held by, or on trust for:
(i) a person by whom property became held (whether or not as trustee) as the result of the distribution of the deceased transferee’s estate, or
(ii) the object of a trust for which property became held on trust as the result of the distribution of the deceased transferee’s estate.
(3) A notional estate order may be made under this section instead of or in addition to an order under section 30, 31 or 32.
Note. Administration of the estate of a deceased transferee may be granted for the purposes of being able to designate property as notional estate under this section (see section 42).
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3.33 This clause allows the Court to designate as notional estate property that has been transferred into the hands of a person who has subsequently died and the property has come into the hands of that person’s administrator or has been distributed from their estate.
3.34 This clause has been inserted to overcome the effect of the decision in Prince v Argue.27
3.35 The National Committee considered that the interpretation in Prince v Argue significantly limited the utility of the notional estate provisions since the Court is thereby “effectively precluded from exercising a power that, but for the death of a person, it could have exercised in relation to that person’s property”.28
3.36 Special circumstances are only required to apply to circumstances where the estate of the deceased transferee has been subsequently distributed (under cl 33(2)(b)). The National Committee concluded that special circumstances should not apply where the deceased transferee’s property merely came to be held by their administrator (see cl 33(2)(a)) because an order made in respect of property held by the administrator “is simply being made instead of the order that could have been made in respect of the property held by, or on trust for, the deceased transferee if the deceased transferee had still been alive”.29
3.37 For consequential changes to other parts of the Model Bill with regards to the estates of deceased transferees, see cl 40(1) and cl 41(2)(a)(i), below.
34 Disadvantage and other matters required before order can be made
(1) The Court must not, merely because a relevant property transaction has been entered into, make an order under section 31, 32 or 33 unless the Court is satisfied that the relevant property transaction or the holding of property resulting from the relevant property transaction:
(a) directly or indirectly disadvantaged the estate of the principal party to the transaction or a person entitled to apply for a family provision order from the estate or, if the deceased person was not the principal party to the transaction, the deceased person (whether before, on or after death), or
(b) involved the exercise by the principal party to the transaction or any other person (whether alone or jointly or severally with any other person) of a right, a discretion or a power of appointment, disposition, nomination or direction that, if not exercised, could have resulted in a benefit to the estate of the principal party to the transaction or a person entitled to apply for a family provision order from the estate or, if the deceased person was not the principal party to the transaction, the deceased person (whether before, on or after death), or
(c) involved the exercise by the principal party to the transaction or any other person (whether alone or jointly or severally with any other person) of a right, a discretion or a power of appointment, disposition, nomination or direction that could, when the relevant property transaction was entered into or at a later time, have been exercised so as to result in a benefit to the estate of the principal party to the transaction or a person entitled to apply for a family provision order from the estate or, if the deceased person was not the principal party to the transaction, the deceased person (whether before, on or after death), or
(d) involved an omission to exercise a right, a discretion or a power of appointment, disposition, nomination or direction that could, when the relevant property transaction was entered into or at a later time, have been exercised by the principal party to the transaction or any other person (whether alone or jointly or severally with any other person) so as to result in a benefit to the estate of the principal party to the transaction or a person entitled to apply for a family provision order from the estate or, if the deceased person was not the principal party to the transaction, the deceased person (whether before, on or after death).
(2) In this section:
principal party to the transaction, in relation to a relevant property transaction, means the person who, under section 26 or 27, enters into the relevant property transaction.
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3.38 Clause 34, which provides that the Court may not make a notional estate order unless a relevant person or estate is disadvantaged, is based on Family Provision Act 1982 (NSW) s 26. It has been included here in Division 2 even though it could equally have been identified as a restriction on the making of a notional estate order and included in Division 3.30
3.39 Clause 35 is based on Family Provision Act 1982 (NSW) s 29.
36 More than one notional estate order may be made
The Court may make one or more notional estate orders in connection with the same proceedings for a family provision order, or any subsequent proceedings relating to the estate.
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3.40 Clause 36 is based on Family Provision Act 1982 (NSW) s 28(3).
3.41 This machinery provision draws attention to the restrictions and protections relating to notional estate orders set out in Division 3.
Division 3 Restrictions and protections relating to notional estate orders
38 General matters that must be considered by Court
The Court must not make a notional estate order unless it has considered the following:
(a) the importance of not interfering with reasonable expectations in relation to property,
(b) the substantial justice and merits involved in making or refusing to make the order,
(c) any other matter it considers relevant in the circumstances.
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3.42 Clause 38 is based on Family Provision Act 1982 (NSW) s 27(1).
39 Estate must not be sufficient for provision or order as to costs
The Court must not make a notional estate order unless it is satisfied that:
(a) the deceased person left no estate, or
(b) the deceased person’s estate is insufficient for the making of the family provision order, or any order as to costs, that the Court is of the opinion should be made, or
(c) provision should not be made wholly out of the deceased person’s estate because there are other persons entitled to apply for family provision orders or because there are special circumstances.
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3.43 Clause 39 is based on Family Provision Act 1982 (NSW) s 28(1), except that cl 39(b) allows that a notional estate order may be made when the deceased person’s estate is insufficient for any order as to costs that the Court may be of the opinion should be made. This is additional to the requirement taken from s 28(1)(a) that the deceased’s estate must be insufficient to allow the Court to order the provision that should be made.
3.44 The reasons for this provision are outlined in the commentary to cl 29(1)(b), above.31
40 Determination of property to be subject to notional estate order
(1) In determining what property should be designated as notional estate of a deceased person, the Court must have regard to the following:
(a) the value and nature of any property:
(i) the subject of a relevant property transaction, or
(ii) the subject of a distribution from the estate of the deceased person or from the estate of a deceased transferee, or
(iii) held by the administrator of the estate of any deceased transferee in his or her capacity as administrator of the estate of the deceased transferee,
(b) the value and nature of any consideration given in a relevant property transaction,
(c) any changes in the value of property of the same nature as the property referred to in paragraph (a), or the consideration referred to in paragraph (b), in the time since the relevant property transaction was entered into, the distribution was made, the property became held by the administrator of the estate of the deceased transferee or the consideration was given,
(d) whether property of the same nature as the property referred to in paragraph (a), or the consideration referred to in paragraph (b), could have been used to obtain income in the time since the relevant property transaction was entered into, the distribution was made, the property became held by the administrator of the estate of the deceased transferee or the consideration was given,
(e) any other matter it considers relevant in the circumstances.
(2) The Court must not designate as notional estate property that exceeds that necessary, in the Court’s opinion, to allow the provision that should be made, or, if the Court makes an order that costs be paid from the notional estate under section 49, to allow to costs to be paid as ordered, or both.
(3) If, as a result of a relevant property transaction or of a distribution from the estate of a deceased person or from the estate of a deceased transferee, property becomes held by a person as a trustee only, the Court must not designate as notional estate any property held by the person other than the property held by the person as a trustee as a consequence of any such relevant property transaction or distribution.
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3.45 Clause 40(1) is based on Family Provision Act 1982 (NSW) s 27(2), except that provisions have been added, in cl 40(1)(a)(ii) and cl 40(1)(a)(iii), to take deceased transferees into account where relevant.32
3.46 Clause 40(2) is based on Family Provision Act 1982 (NSW) s 28(2), except that provision has been made to take into account the Court’s ability to order costs from the notional estate of the deceased.33
3.47 Clause 40(3) is based on Family Provision Act 1982 (NSW) s 28(4), except that provision has been made to take into account estates of deceased transferees where relevant.34
41 Restrictions on out of time or additional applications
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3.48 Clause 41 places restrictions on the Court’s ability to make notional estate orders in the case of applications made out of time or in the case of applications for further provision. It is based on Family Provision Act 1982 (NSW) s 28(5). Material changes include the 12 month limitation period identified in cl 41(1)(a), necessitated by the limitation period proposed in cl 9 and variations to cl 41(2)(a)(i) to take account of deceased transferees where relevant.35
FOOTNOTES
1. Family Provision Act 1982 (NSW) Part 2 Div 2.
2. New South Wales Law Reform Commission, Testator’s Family Maintenance and Guardianship of Infants Act, 1916 (Report 28, 1977).
3. Inheritance (Provision for Family and Dependants) Act 1975 (Eng) s 10-13.
4. Uniform Probate Code (US) s 2-201 - s 2-207.
5. National Committee for Uniform Succession Laws, Report to the Standing Committee of Attorneys General on Family Provision (Queensland Law Reform Commission, Miscellaneous Paper 28, 1997) (“MP 28”) at 87, 93.
6. MP 28 at 80.
7. MP 28 at 81.
8. See New Zealand, Law Commission, Succession Law: A Succession (Adjustment) Act (Report 39, 1997) 132-133; and MP 28 at 87-89.
9. MP 28 at 80. See also 93-94.
10. See MP 28 at 94.
11. Wade v Harding (1987) 11 NSWLR 551; and Cameron v Hills (NSW SC, No 3442/1986, Needham J, 26 October 1989, unreported) at 5. See also Barker v Magee [2001] NSWSC 563 at para 45.
12. MP 28 at 85.
13. National Committee for Uniform Succession Laws, Family Provision: Supplementary Report to the Standing Committee of Attorneys General (Queensland Law Reform Commission, Report 58, 2004) (“R 58”) at para 3.26.
14. Wade v Harding (1987) 11 NSWLR 551 at 556. But see Cameron v Hills (NSW SC, No 3442/1986, Needham J, 26 October 1989, unreported) at 9.
15. R 58 at para3.27, footnote 96.
16. R 58 at para 3.31.
17. But see the National Committee’s specific recommendation that the anti-avoidance provisions should cover donationes mortis causa: MP 28 at 94. See also the New Zealand Law Commission’s proposals relating to “non-probate assets”: New Zealand, Law Commission, Succession Law: Testamentary Claims (Preliminary Paper 24, 1996) at para 340.
18. In this regard see cl 14(5) and cl 49 of the model provisions.
19. Tobin v Hardy (NSW SC, No 1548/1992, Cohen J, 14 October 1992, unreported). The plaintiff’s claim had not been so unreasonable as to require the plaintiff to bear the defendant’s costs.
20. Tobin v Hardy (NSW SC, No 1548/1992, Cohen J, 14 October 1992, unreported) at 13.
21. R 58 at 78. See also the commentary on cl 39(b) at para 3.43, below.
22. R 58 at para 5.89. See also commentary on cl 49 at para 4.23-4.26, below.
23. Family Provision Act 1982 (NSW) s 23(b)(ii).
24. See cl 32(1)(c).
25. Prince v Argue [2002] NSWSC 1217.
26. R 58 at para 3.38.
27. Prince v Argue [2002] NSWSC 1217. See para 3.31, above.
28. R 58 at para 3.35.
29. R 58 at para 3.48.
30. MP 28 at 86.
31. See para 3.21-3.24.
32. See also para 3.30-3.37 above.
33. See the commentary to cl 29 at para 3.21-3.24 and cl 49 at para 4.23-4.26.
34. R 58 Recommendations 3-5. See also para 3.30-3.37, above.
35. See also para 3.33-3.37, above.
