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
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
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
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”.
Tasmania Law Reform Institute