News

TLRI Final Report – Notional Estate Laws – Notice from the TLRI

The Institute’s latest publication, Final Report No. 27 Should Tasmania Introduce “Notional Estate” Laws?, was released on 4 September .

The report has concluded that laws enabling family members to dispute an inheritance should not be expanded to cover assets such as superannuation, life insurance and family trust assets that don’t come into a person’s estate. In every Australian State except NSW, these ‘non-estate assets’, which also include certain jointly owned assets, cannot be claimed when someone applies to the court for more from a deceased estate.

Under the Testator’s Family Maintenance Act 1912 (Tas) people can give away assets before their death to remove those assets from claims. The State Government’s terms of reference asked the TLRI to consider whether Tasmania should introduce laws, like those in NSW, that allow a court to declare non-estate assets to be ‘’notional estate’’.

The extent to which family members can dispute what was left to them under a will is a topic that people often hold strong views about.  The Institute’s public consultation highlighted significant differences of opinion about the extent to which assets should be subject to claims. This demonstrated that there is no easy answer to what is, at least in part, a philosophical question about the limits the law should place upon people’s freedom to deal with their assets as they please and to gift their assets as they wish after their death.

The report concludes that Tasmania should not introduce notional estate laws unless nationally uniform laws are enacted. Several respondents to the TLRI raised concerns about the potential for notional estate laws to be avoided through “jurisdiction shopping”, with NSW the only Australian jurisdiction with laws of this type. The report observes that the effectiveness of the NSW scheme has not yet been evaluated. Several respondents suggested that notional estate laws increase the complexity, time and cost of court disputes.

Given the significant barrier to the effectiveness of notional estate laws created by the lack of nationally uniform laws,  the questions about the extent of need for reform and the potential problems it may create, the Institute formed the view that notional estate provisions should not be enacted in Tasmania without nationally uniform laws and further evaluation of the New South Wales law.

Nevertheless, noting the divergent and strongly held views on this issue and that several respondents did support the introduction of notional estate laws to prevent people avoiding legitimate claims to their estates, the TLRI’s report recommends that uniform family provision laws be placed on the national agenda with this project including an evaluation of the NSW scheme and research into the extent to which claims are presently being avoided.

Acknowledging that the State government may legitimately conclude that reform is desirable given the strong arguments advanced in favour of it, the report suggests that any reform should enact a narrower scheme to that in New South Wales and concentrate upon situations where people intentionally avoid claims.

The research was funded by a grant from the Solicitor’s Guarantee Fund.

The Final Report, including an easy-read version, can be found here: https://www.utas.edu.au/law-reform/publications/completed-law-reform-projects#notional-estates under the tab “Notional Estates”.

Kate Hanslow
Research Fellow
Tasmania Law Reform Institute

Law School Annual Meet the Profession Event

Co-hosted by the Law Society of Tasmania, Tasmanian Women Lawyers, the Southern Young Lawyers Committee, the Association of Corporate Counsel (Tasmanian Division) and the Tasmania University Law Society.

From 4.30pm to 6.30pm
Tuesday 10 September 2019
University of Tasmania Law Faculty
Drinks & Canapes provided
Registration essential
All practitioners are encouraged to attend.

Register here

The National Disability Insurance Agency (NDIA) – Compensation in the NDIS Context Update

The National Disability Insurance Agency (NDIA) has comprehensively
updated its Operational Guidelines (OGs) concerning compensation in the
NDIS context. The updated OGs include guidance in relation to the
compensation provisions set out in the National Disability Insurance Scheme
Act 2013 and the National Disability Insurance Scheme (Supports for
Participants – Accounting for Compensation) Rules 2013. The updated OGs
outline the NDIA’s processes for recovery and the calculation of a
Compensation Reduction Amount. Further information on compensation in the
NDIS context, can be found at ndis.gov.au.

The Law Foundation of Tasmania – Application for Grants 2019

The Law Foundation of Tasmania makes grants for law related projects which are in accordance with the Foundation’s objects which include:

(1)        The principal object of the Foundation is to advance the development of, access to and administration of a fair and equitable justice system in Tasmania for the benefit of the general public.

(2)        The other objects of the Foundation are:

(a)        to fund or otherwise advance, or undertake legal research which is likely to promote the principal object, or the maintenance and just reform of the law in Tasmania;

(b)       to fund or otherwise advance education which is likely to promote the principal object including community legal education and legal education in schools in Tasmania;

(c)        to fund or otherwise promote the study of law in Universities, the  practical legal training of law graduates, and the education and training of Australian legal practitioners and employees of law practices in Tasmania;

(d)       to fund, purchase, establish, maintain and improve law libraries in Tasmania in order to promote the principal object;

(e)        to publish or fund the publication of materials related to the law in Tasmania or connected with the objects of the Foundation;

(f)        to fund or otherwise advance legal aid or pro-bono legal services in Tasmania;

(g)       to establish and maintain a public fund to promote the objects of the Foundation;

(h)       to do anything incidental or conducive to carrying out the objects of the Foundation.

Applications are invited from individuals and organisations who wish to apply for a grant in respect of projects which would further these objects.  Applicants should obtain a copy of the application guidelines before submitting their application from either the Law Society’s website www.lst.org.au or the Secretary of the Law Foundation of Tasmania info@lst.org.au or telephone (03) 6234 4133

APPLICATIONS CLOSE: 20 September 2019    

Expressions of Interest – Appointments to the Administrative Appeals Tribunal

The Government is inviting suitably qualified members of the public to submit an expression of interest to be considered for appointment to the Administrative Appeals Tribunal (AAT).

Appointments are for one or more of the categories below:

  • Member
  • Senior Member
  • Deputy President

Deputy Presidents may exercise a designated leadership role as the head of a division or divisions. Deputy Presidents or Senior Members may also be assigned as a Deputy Division Head. Suitably qualified individuals who are interested in a Division Head or Deputy Division Head role are invited to submit an expression of interest accordingly.

The minimum requirements for appointment to the AAT are outlined in the Administrative Appeals Tribunal Act 1975 (AAT Act). The AAT Act provides that a person must:

  • be enrolled as a legal practitioner of the High Court or the Supreme Court of a state or territory for at least five years, or
  • in the opinion of the Governor-General, possess special knowledge or skills relevant to the position.

The AAT is an independent statutory body that reviews a broad range of administrative decisions made by Australian Government ministers, officers, and authorities. More information about the AAT can be found at www.aat.gov.au/about-the-aat.

Further information about how to submit an expression of interest can be found on the Attorney-General Department’s website at www.ag.gov.au/About/Careers/Pages/default.aspx. Expressions of interest must be submitted by 8 September 2019.

An advertisement has been placed on the APS Employment Gazette at www.apsjobs.gov.au and was also published in national, state and territory newspapers on Friday 9 and Saturday 10 August 2019. 

This expression of interest process will create a register of candidates from which recommendations for appointment may be drawn. The register will be valid for up to 12 months.

Please contact aat.appointments@ag.gov.au with any questions about the expression of interest process.

Kind regards

Administrative Appeals Tribunal Section

Attorney-General’s Department