When a loved one passes, it can be a difficult time to deal with such a loss. Unfortunately, it can also involve many awkward formalities and arrangements to make. We understand the pain and confusion that this may entail. While grieving and worrying about the practicalities, the pain can be compounded by learning that your deceased loved one either left you out of their Will or left you with gifts inadequate for your support. While it may seem final and unbearable, there are things you can do. In seeking legal help, the court will advocate for something called equity, which means restoring what is fair. Between equity and actual legislation in your state, you should be able to claim back what is rightfully yours, if you meet certain requirements.
Sometimes a deceased has distributed property prior to death to prevent the family from challenging the distribution through what is called a family provision order. Nominal and Clawback provisions offer options for the family of a deceased in such circumstances.
This blog post will focus on New South Wales and Victoria only. Different states have taken different approaches on how to deal with Nominal and Clawback provisions and this will be explained in another blog post.
What The Courts Can Do
A court can intervene and redistribute some of the assets under the Will. The laws that enable them to do this are often called ‘clawback provisions’. Under such a court order, a person who received property from the deceased, prior to their death, will no longer have any rights to that property.
When making a clawback provision order, the court will consider a range of factors, attempting to best meet the ‘reasonable expectations’ in relation to that property and below are some guidelines.
New South Wales
Victoria does not have notional estates as part of its succession laws.
In 2013, the Victorian Law Reform Commission recommended that the NSW notional provisions should not be adopted in Victoria.
While Victoria does not have explicit provisions in their succession laws, one may be able to reclaim their adequate entitlements in equity, where a court would agree that you were excluded from what is fair and reasonable. This is done through an application to a Court to seek ‘adequate provision from the Estate of a deceased person’. (2)
The requirements to be successful for one are:
You were a dependant of the deceased
What you were awarded in the estate is not adequate for your maintenance and support
Your relationship with the deceased only began after the last Will was made
The Will does not make provision for the partner or children in another marriage or de facto relationship
You believe the Will is grossly unfair
You can prove that the will maker was not in a sound state of mind when they made the Will
You can prove that the Will maker was unduly influenced by one or more of the beneficiaries
The Will is unclear
We offer no-cost, no-obligation initial appointments so that you can find out where you stand and exactly how much it will cost to get your Will and/or Estate Plan in order. We offer fixed fees and payment plans; your wishes, your way.
Don't wait until it's too late, contact us today!
Phone 1800 22 33 90 Email firstname.lastname@example.org Or request a free call back on our website
(1) Succession Act 2006 (NSW)
(2) Administration and Probate Act 1958 (VIC)