My father transferred his house to my stepmother a year before dying. Can this be set aside?

What the Law Says

In New South Wales, transfers of property made shortly before death may be challenged under specific statutory provisions — particularly where they reduce the estate available for family provision claims.

The Succession Act 2006 (NSW) allows eligible persons — including children — to make a family provision claim against a deceased person’s estate if adequate provision was not made for their maintenance, education or advancement in life.

Section 63 of the Succession Act 2006 (NSW) permits the court to treat property transferred by the deceased before death as 'notional estate' if the transfer was made with the intention of defeating a family provision claim, or if it was made without full consideration and within a certain period before death.

Section 75 of the Conveyancing Act 1919 (NSW) provides that a conveyance made by a person who is insolvent, or who becomes insolvent shortly after, may be set aside if it was made with intent to defraud creditors — though this applies less directly to family provision claims.

Importantly, any application to have a transfer treated as notional estate must be made within 6 months after the grant of probate or letters of administration.

Statutory Text

The Court may, on application, order that property which has been transferred by the deceased person before death be treated as notional estate...

— Succession Act 2006 (NSW), s. 63 — Notional estate

Statutory Text

An application under this section must be made within 6 months after the grant of probate or letters of administration.

— Succession Act 2006 (NSW), s. 63(4) — Time limit

What to Do

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