This Tasmania Law Reform Institute (TLRI) 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 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.