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Family Provision claim from Notional Estate

What is notional estate?  Put simply in NSW its anything you may have owned in the three years prior to your death.

Megerditchian v Khatchadourian [2019] NSWSC 1870

This case concerned a family provision application on behalf of the plaintiff, the daughter, out of the estate of her late father. The major asset of the deceased’s estate was the family home, which was held by the deceased and his son as joint tenants, after the death of the deceased’s wife. The property then passed to the son, and the remaining estate of the deceased consisted only of approximately $5000. The deceased’s will set out that the daughter was to be paid $10 000, and the rest of the estate to the son. The daughter sought an order designating a half share of the major asset as notional estate under the Succession Act 2006 (NSW). The court considered the value of the asset at the time of the will which was to be awarded to the son, in proportion to the legacy of $10 000 for the plaintiff. The Court adjusted this accordingly and awarded the plaintiff a legacy of $100 000 by designating the half share in the major asset as notional estate.

“In Megerditchian v Khatchadourian [2019] NSWSC 1870 the court considered a number of important procedural issues, including the requirement that the plaintiff file an affidavit at the time of filing their summons and the issues relating to the form and evidentiary status of that affidavit. At [159]  the court stated:

 the purpose of the affidavit prescribed by the Practice Note is to identify, in broad terms, the plaintiff’s evidence concerning the factors enumerated in s 60(2) which may bear on the application. It will not necessarily be exhaustive, or all in admissible form, and it may be supplemented by further evidence as the case moves towards hearing.

The court also considered the plaintiff’s duty of disclosure. At [145] the court noted that:

It is well established that, in some circumstances, where a plaintiff in a family provision application fails to make full and proper disclosure of his or her financial position, the Court will refuse the application.”By Lawyers