By Darryl Browne -
Key decisions
- Oates v Oates [2025] NSWSC 548, McLean v Cree [2025] NSWSC 577, McLean v Cree (No 2) [2025] NSWSC 684 and Skidmore v Salvatore [2025] NSWSC 712 (notional estate)
- Pethers v Pethers (No 2) [2025] NSWSC 561 (family provision costs)
- MS [2025] WASAT 49, Legal Services and Complaints Committee and Hardie [2025] WASAT 50, De Marchi v Victorian Legal Services Commissioner (Legal Practice) [2025] VCAT 554 and Ma v Xu [2025] VSC 361 (powers of attorney)
- In the Estate of Margaret Mary Tassie [2025] ACTSC 255 (executorship)
- Joris & Joris [2025] FedCFamC2F 317 (production of will)
Order designating joint tenancy home as notional estate
At his death, Steven Oates left an estate of $3,443.62. His son, Aaron, sought an order for family provision. He identified two assets for designation as notional estate. The first was the deceased’s interest as joint tenant of the home he shared with his second wife. The second asset was a superannuation death benefit of $293,345. Aaron argued and the Court found the deceased’s failure to sever the joint tenancy was a ‘relevant property transaction’ within the meaning of section 75 of the Succession Act 2006 (NSW) (‘Act’). Similarly, the deceased’s failure to make a nomination to direct his superannuation benefit to be paid to his legal personal representative was a ‘relevant property transaction’ (Oates v Oates [2025] NSWSC 548 (Brereton J) at [24] and [26]). Both assets were therefore available to be designated as notional estate for the purpose of meeting an order for family provision.
If the deceased had undertaken the actions which he failed to take and died intestate (as he did), the deceased’s wife would have received the deceased’s personal effects, the statutory legacy (of $536,277) and half of any remainder of the estate pursuant to section 113 of the Act. Aaron would have been entitled to the other half pursuant to section 127. The Court calculated the deceased’s adjusted contribution to his notional estate (to reflect his wife’s contribution to the deceased’s notional estate) at $600,000 (at [28]-[29]).
