Legal Project Management Plan & Checklist
Purpose of this Guide: Use this fork when the deceased transferred assets out of their estate before death - often to defeat or reduce family provision claims - and those assets need to be clawed back into the estate for the claim to have any practical value. The Succession Act 2006 (NSW) gives the NSW Supreme Court a unique power, found nowhere else in Australia except the Australian Capital Territory, to designate transferred property as 'notional estate' and treat it as if it were still part of the deceased's estate for the purpose of making a family provision order. Common targets include real property held in joint tenancy (which passes by survivorship), superannuation binding death benefit nominations to non-estate beneficiaries, gifts of property at undervalue, and trust distributions made close to death. The transfer must generally have occurred within 3 years of death.
Jurisdiction: NSW Supreme Court - Equity Division, Family Provision List. Notional Estate Orders under Part 3.3 (sections 75-89) of the Succession Act 2006 (NSW). This jurisdiction is unique to NSW and the ACT - there is no equivalent power in Queensland, Victoria, or Western Australia.
The Process at a Glance: Conduct LRS title searches covering the 3-year pre-death window to identify joint tenancies, transfers, and dispositions. Identify superannuation binding death benefit nominations made within 3 years of death and the fund trustee's payment records. Assess the combined notional estate value against litigation cost. Plead the Notional Estate Order as a discrete claim in the Summons alongside the substantive family provision claim. Serve on both the LPR and the person to whom the notional estate property was transferred (who becomes a respondent). At mediation or hearing, seek designation of the notional estate assets and then an order charged against them.
Key Legislation and Case Law: Succession Act 2006 (NSW) Part 3.3: s 75 (definition of 'notional estate'), s 76 (property the subject of a relevant property transaction), s 78 (relevant property transactions), s 80 (making a notional estate order), s 82 (factors the court considers), s 84 (designated property charged with the provision order), s 88 (3-year look-back period). Vigolo v Bostin (2005) 221 CLR 191 - scope of the court's notional estate power and the need for proportionality between the designation sought and the plaintiff's needs. [Eliades v Pappas [2020] NSWSC 543](https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWSC/2020/543.html) - joint tenancy severance as a notional estate target.
* Disclaimer: We're nobody's lawyer, because we aren't lawyers. You are, so you know better than to take legal advice from an app. We also aren't accountants or dog trainers - just digital spirit guides taking zero liability for any of this. This site exists to gather the collective knowledge of practitioners like you. Verify everything and submit your feedback on the Family Provision Application - Plaintiff (NSW Supreme Court) - Notional Estate Application - Clawback of Inter Vivos Transfers matter plan to improve the playbook. THIS IS NOT LEGAL ADVICE, it's a request for input.
This legal matter plan provides a structured workflow for Wills and Estates cases, outlining the standard Contentious Litigation process. Utilize these tracking templates to manage your legal cases efficiently.
Got a question about this plan?
Ask in the practitioner Discord - edge cases, rule changes, and jurisdiction-specific nuances, all in one place.