BlogSuccession ActTanya SegelovWills & Estates

Family Provision claims where some of the estate is outside NSW

Australia is a land of immigrants. One in four Australians were born overseas, this is why it is quite common that a person will not only hold Australian assets but also have overseas interests.

The Succession Act 2006 (NSW) allows the New South Wales Supreme Court to make a family provision order in relation to a deceased’s estate if it is satisfied that the deceased did not make adequate provision for an eligible person’s proper maintenance, education or advancement of life. In making such an order the court can make orders in respect of property in or outside of New South Wales including overseas property.

The court will first determine whether the deceased was domiciled in New South Wales at the date of death. Domicile is defined as the country that a person treats as their permanent home or lives in or has a connection with. In most cases domicile is determined by origin (place or birth) or choice (where the person lived).

If the deceased was not domiciled in New South Wales at his or her death then the court will only make an order in relation to property located in New South Wales. The court can however take into account the existence of property outside New South Wales when making orders for provision. That is, even though the Court cannot make orders in relation to property outside New South Wales it can consider who was left the property outside New South Wales when deciding what should happen to the property in New South Wales.

If the deceased was domiciled in New South Wales then the court can make orders in respect of property both in New South Wales and overseas. In many cases however, even where the deceased was domiciled in New South Wales, the court has declined to make orders in relation to the overseas property and rather taken the overseas property into account when making orders. This is likely due to the practical difficulties of enforcing the New South Wales orders overseas.

It is important to obtain advice in relation to a potential family provision claim where property is held both in New South Wales and interstate or overseas. Segelov Taylor can asset in providing advice and acting on a no win no fee basis.

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