Notional estate is a NSW power that lets the Supreme Court treat property the deceased gave away as if it remained part of the estate, for the purpose of a family provision claim. The rules sit in Part 3.3 of the Succession Act 2006 (NSW).
This mechanism prevents a person from emptying their estate before death to defeat family provision claims. Empower Probate Lawyers acts for both claimants and executors in NSW notional estate matters. This guide covers what counts as notional estate, when the court can claw back assets, and what the court considers before making an order.
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What Notional Estate Means
Notional estate is unique to NSW. No other Australian state has equivalent claw-back provisions in its family provision legislation. The mechanism was introduced under the Family Provision Act 1982 (NSW) and is now carried into Part 3.3 of the Succession Act 2006 (NSW).
The concept exists to balance two competing principles. The first is testamentary freedom, the right of a person to decide what happens to their property. The second is the moral obligation a deceased may owe to those who depend on them.
Without notional estate provisions, a person could move every significant asset out of their personal name into joint tenancy, into a family trust, or into a superannuation death benefit nomination and leave an effectively empty estate. The Supreme Court of NSW can now look at what should have been the estate, not just what was technically left.
When the Court Will Make a Notional Estate Order
Under section 78 of the Succession Act 2006 (NSW), the court may only make a notional estate order if it has decided to make a family provision order and one of the following is true:
- The deceased had no actual estate
- The actual estate is not sufficient to provide for the claim
- The provision should be made in a way that requires recourse to property outside the estate
A notional estate order is never automatic. The court has discretion and must consider both the merits of the claim and the impact on the people currently holding the property.
The claim is brought by an eligible person under section 57 of the Act within the 12-month time limit set by section 58. The procedure is set out in our guide on how to contest a will in NSW.
What Counts as a Relevant Property Transaction
The term that drives the entire mechanism is “relevant property transaction.” Section 75 defines this broadly: a transaction by which the deceased directly or indirectly disposed of, or failed to deal with, property without receiving full valuable consideration. Section 76 sets out specific examples:
Failing to Sever a Joint Tenancy
Where the deceased held property as a joint tenant, the failure to sever the joint tenancy before death is a relevant property transaction under section 76(1)(b), the deceased’s share passes by survivorship rather than into the estate, and the court can claw it back.
Superannuation Death Benefit Nominations
A binding death benefit nomination directing superannuation to a specific beneficiary, rather than to the estate, can be a relevant property transaction. The deceased has effectively diverted property out of the estate.
Trust Transfers Without Full Valuable Consideration
Property transferred into a discretionary family trust before death can be designated as notional estate, particularly where the deceased retained practical control over the trust.
Gifts and Undervalued Transfers
A significant gift in the years before death, or a sale at well below market value, can qualify. A transfer “for love and affection” is not full valuable consideration.
Life Insurance Nominations
Life insurance policies payable directly to a nominated beneficiary can be designated as a notional estate in the same way as superannuation.
The Three Time Windows Under Section 80
Section 80 of the Succession Act 2006 (NSW) sets strict timing rules for when a relevant property transaction can be the subject of a notional estate order:
Transactions At or After Death
Any transaction that took effect at, or is to take effect after, the deceased’s death is automatically within scope. This includes joint tenancy survivorship and post-death superannuation payments to a nominated beneficiary.
Transactions Within One Year Before Death
A transaction in the last twelve months of the deceased’s life can be designated if, at the time, the deceased had a moral obligation to provide for an eligible person that was substantially greater than any moral obligation to enter into the transaction. The court weighs the competing moral obligations.
Transactions Within Three Years Before Death
A transaction up to three years before death can be designated only if it was entered into with the intention to deny or limit family provision to an eligible person. Intention is a much higher bar to prove than the one-year test, and the burden sits with the claimant.
What the Court Must Consider Under Section 87
Before making a notional estate order, the Supreme Court must take into account the factors set out in section 87 of the Succession Act 2006 (NSW):
- The importance of not interfering with the reasonable expectations of the people who currently hold the property
- The substantial justice and merits of the family provision claim
- Whether the deceased’s actual estate is sufficient on its own
- Any other competing claims on the estate
- The conduct of the parties before and after the transaction
- Any agreement the deceased entered into during their lifetime
The court does not simply look at unfairness in the abstract. The discretion is calibrated so the property is only clawed back when the case clearly justifies it.
How a Notional Estate Claim Works in Practice
A notional estate claim runs alongside a family provision claim under Chapter 3 of the Act, not as a separate proceeding. The typical sequence is:
- An eligible person files a family provision claim within 12 months of death under section 57
- Claimant identifies relevant property transactions during evidence-gathering
- Claimant pleads notional estate as part of the relief sought in the Summons
- Court determines the family provision claim on its merits
- If actual estate is insufficient, the court considers whether to make a notional estate order
- Court designates specific property as notional estate
- Order is enforced against the holders of the designated property
In recent matters such as Skidmore v Salvatore [2025] NSWSC 712, the court has used injunctions to freeze sale proceeds pending determination, so potential notional estate property cannot be dissipated before the claim is heard.
Why Notional Estate Matters for NSW Estate Planning
The existence of notional estate provisions changes how wills, trusts, and asset planning work in NSW.
For will-makers, the assumption that giving everything to a new spouse or putting assets in a family trust will defeat a family provision claim is incorrect. The court can look behind these arrangements. Proper succession planning needs to account for the notional estate provisions.
For executors, identifying potential notional estate property is part of properly defending the estate. An executor who fails to disclose obvious notional estate property exposes themselves to criticism and the estate to additional claims.
For claimants, notional estate provisions can transform what looks like a worthless estate into a meaningful one. The first question to ask is not “what is in the estate?” but “what would have been in the estate if certain transactions had not occurred?”
How a Specialist NSW Probate Lawyer Helps With Notional Estate Claims
Notional estate matters are not general-practice work. They sit at the intersection of family provision, trust law, superannuation law, and property law. A wrong assumption at the start of a matter can cost a claimant a viable claim or leave an executor personally exposed.
Our team at Empower Probate Lawyers focuses exclusively on probate, estate administration, and will disputes. Our director, Oliver Morrisey, holds a Master of Laws in Wills and Estates (High Distinction) and has acted in notional estate matters on both the claimant and executor side across NSW. We help:
- Claimants identify whether notional estate property exists and frame the claim accordingly
- Executors assess exposure and respond properly to notional estate allegations
- Will-makers structure their estate planning with the section 80 time windows in mind
- Trustees of family trusts understand when trust property may be at risk
Get Help With a Notional Estate Claim in NSW
If you are pursuing or defending a family provision claim that may involve a notional estate, call Empower Probate Lawyers on 1300 481 161. Specialist advice. Free initial consultation. Deferred fee arrangements are available in eligible cases.
Frequently Asked Questions
Does notional estate apply outside NSW?
No. Notional estate is unique to NSW. Other Australian states have family provision regimes, but only NSW has the broad claw-back provisions in Part 3.3 of the Succession Act 2006 (NSW) that allow the court to designate non-estate property.
Who can apply for a notional estate order?
Only an eligible person under section 57 of the Succession Act 2006 (NSW) can apply. These include the deceased’s spouse, de facto partner, children, certain former spouses, and certain dependants. The application is filed within 12 months of death.
Can a joint tenancy property always be clawed back?
Not always. The failure to sever the joint tenancy is a relevant property transaction, but the court still considers the section 87 factors before making an order. The contributions of the surviving joint tenant and the reasonableness of their expectations are weighed.
Are superannuation death benefits always a notional estate?
Not automatically. A super death benefit can be designated as notional estate where the nomination was a relevant property transaction. The court looks at the timing, the nomination’s structure, and whether the trustee retained discretion.
What is “full valuable consideration”?
Payment in money or money’s worth for the full value of the property. Nominal sums, “love and affection,” or partial payments do not satisfy the test under section 75.
Can a notional estate order be made after the estate has been distributed?
Yes, but with restrictions. Section 79 allows orders affecting distributed property in some cases. Once property is in the hands of an innocent third party, however, recovery becomes more difficult, and the court’s discretion narrows.
