Notional Estate

Notional estate is a powerful tool unique to New South Wales. Normally a family provision claim can only be met out of assets in the actual deceased estate, but in NSW the court can designate certain property that left the estate — such as gifts made shortly before death, jointly held assets passing by survivorship, or a superannuation death benefit — as "notional estate" and make it available to an eligible person. This stops people defeating provision claims by emptying their estate before death.

The notional estate regime only exists in NSW, so where assets sit and where the deceased lived can change the outcome dramatically. Example: Because the family home passed automatically to the deceased's brother by survivorship, the NSW court designated it notional estate so the widow's claim could be paid.