Division 2 When notional estate orders may be made

78   Notional estate order may be made only if family provision order or certain costs orders to be made

(1)  The Court may make an order designating property as notional estate only:

(a)  for the purposes of a family provision order to be made under Part 3.2, or

(b)  for the purposes of an order that the whole or part of the costs of proceedings in relation to the estate or notional estate of a deceased person be paid from the notional estate of the deceased person.

Note. Section 63 (5) enables a family provision order to be made in relation to property designated as notional estate of a deceased person.

Section 99 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.

79   Notional estate order may be made where property of estate distributed

(cf FPA 24)

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 on, or as a result of, a distribution of the deceased person’s estate, property (whether or not the subject of the distribution) became held by a person (whether or not as trustee) or subject to a trust.

80   Notional estate order may be made where estate affected by relevant property transaction

(cf FPA 23)

(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 75 and 76.

(2)  This section applies to the following relevant property transactions:

(a)  a transaction that took effect within 3 years before the date of 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 date of the death of the deceased person and was entered into when the deceased person had a moral obligation 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 which was substantially greater than any moral obligation of the deceased person to enter into the transaction,

(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.

81   Notional estate order may be made where estate affected by subsequent relevant property transaction

(cf FPA 25)

(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)  it:

(i)  has power, under this or any other section of this Chapter, to make a notional estate order designating property held by, or on trust for, a person (the transferee) as notional estate of the deceased person, or

(ii)  immediately before the date of the death of a person (the deceased transferee), had power, under this or any other section of this Chapter, 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)  since the relevant property transaction or distribution that gave rise to the power to make the order was entered into or made, the transferee, or the deceased transferee, entered into a relevant property transaction, and

(c)  there are special circumstances that warrant the making of the order.

(2)  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 the relevant property transaction entered into by the transferee or the deceased transferee, or

(b)  the object of a trust for which property became held on trust as the result of the relevant property transaction entered into by the transferee or the deceased transferee,

      whether or not the property was the subject of the relevant property transaction.

(3)  A notional estate order may be made under this section instead of or in addition to an order under section 79, 80 or 82.

82   Notional estate order may be made where property of deceased transferee’s estate held by legal representative 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 date of the death of a person (the deceased transferee), it had power, under this or any other section of this Chapter, 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 legal representative of the estate of the deceased transferee in his or her capacity as legal representative of the estate of the deceased transferee,

(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 79, 80 or 81.

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 91).

83   Disadvantage and other matters required before order can be made

(cf FPA 26)

(1)  The Court must not, merely because a relevant property transaction has been entered into, make an order under section 80, 81 or 82 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 75 or 76, enters into the relevant property transaction.

84   Effect of notional estate order

(cf FPA 29)

A person’s rights are extinguished to the extent that they are affected by a notional estate order.

85   More than one notional estate order may be made

(cf FPA 28 (3))

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 of the same deceased person.

86   Power subject to Division 3

The Court’s power to make a notional estate order under this Division is subject to Division 3.