Should Tasmania have notional estate laws? Good question! The Tasmania Law Reform Institute recently released a paper on exactly that question! The paper discusses the effect notional estate laws could have had in the Tasmanian case of Williams v Williams, in which our solicitor Alexander Wells appeared in and recently won in the Supreme Court.
“But what are notional estate laws?” we hear you ask. Whilst Tasmania has laws in place which allows a court to make provision (or additional provision) for an eligible applicant where the court determines that a testator’s will (or the effect of intestacy laws) does not make adequate provision for that applicant, issues can arise where there is not enough in the estate to go around. Only those assets that are part of the deceased’s ‘estate’ can be used to fund a successful claim for provision.
There are many instances where assets that might be considered the testator’s are not, in fact, included within their estate. This includes assets owned with others as joint tenants, trust assets and, in some instances, superannuation. New South Wales has attempted to react to these issues by passing laws that enable the court to deem assets that are not part of a person’s estate as being part of their ‘notional estate’, thus making those assets susceptible to the applicant’s claim.
A very interesting read indeed!
If you have any questions about making a Will, the contents of a Will, or making a claim against a Will, call in and talk to Bishops today!