My deceased parent transferred assets to their new spouse before death to avoid my claim. Can I challenge this?

What the Law Says

In New South Wales, certain transfers made by a deceased person before death — including to a new spouse — can be treated as part of the 'notional estate' if done to avoid family provision claims. This allows the court to make orders as if those assets were still in the estate.

The Succession Act 2006 (NSW) gives the Supreme Court power to designate property as 'notional estate' where a person has disposed of assets shortly before death in circumstances that reduce what is available for eligible applicants — like children — to claim against.

This applies even if the transfer was legally valid at the time, such as a gift or sale to a new spouse. The court considers timing, relationship, and whether the transfer had the effect (or purpose) of defeating a potential claim.

Only NSW law provides this notional estate mechanism. Other Australian states and territories do not have equivalent statutory powers — they rely solely on family provision applications against the actual estate.

Statutory Text

The Court may, on application, make an order designating property as notional estate of a deceased person if it is satisfied that the property was transferred by the deceased person... for the purpose of defeating a claim for provision.

— Succession Act 2006 (NSW), s. 75(1)(a) — Designation of property as notional estate

Statutory Text

An application for an order under this Division must be made within 3 months after the grant of probate or letters of administration.

— Succession Act 2006 (NSW), s. 63(1) — Time for making application

What to Do

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