Can I claim provision from an overseas estate in NSW?

Published 20 Nov 2018

PricewaterhouseCoopers' report on the national diaspora estimates there are currently 1 million Australians living overseas, with this figure set to increase to 1.35 million by 2030. This means NSW residents will likely have family members, friends and other loved ones living overseas for a period of time, or even their entire lives. When this individual passes away, what happens to their assets accrued abroad? Can significant others claim for provision from an estate overseas?

Estate provision laws in NSW

All Wills covering property and assets in NSW are governed by the state's Succession Act 2006. This legislation defines how an estate can be managed and executed, and which individuals need to be provided for under family law. These parties include:

  • Children and other dependents.
  • Spouses/intimate partners.
  • Siblings and parents.

If an individual's Will doesn't make suitable provision for these key individuals, the state can intervene and make a reasonable order for provision.

How can the state make a claim for provision on my behalf?

Even if the individual claiming from the estate meets the provision criteria under the Succession Act 2006, the deceased needs to meet key requirements too. These include if:

  • The deceased was considered 'domiciled' in NSW at any point. This is determined by where the deceased was born and chose to habitually reside.
  • The individual lived in or owned property in the state at the time of their death.
  • A Will, valid under NSW family law, is held relating to the estate's properties/assets.

However, even if these conditions are met, the court is still limited in its power to make an order for provision with consideration to property and assets held overseas.

NSW case law in action

Chen v Lu 2014

Here, the deceased passed away while living in NSW, leaving both assets held in the state and Chinese properties in their Will. While the court claimed it had the jurisdiction to make provision orders from these premises, it declined to include these in the final decision. Instead, the properties in China were taken into account when making provision from the assets held in NSW, to fairly compensate the plaintiff for the value of the assets overseas that they had no claim to.

Taylor v Farrugia 2009

The estate holder in question died while living in Malta, leaving behind assets there and NSW. The deceased was born in Malta but resided in Australia for over four decades before returning to his homeland. Similar to Chen v Lu 2014, the court decided to account for the Maltese assets when making orders for provision from the portion of the estate held in NSW.

These cases demonstrate the lack of power the NSW court has to make orders directly on assets and properties held by non-NSW residents or purchased abroad.

However, that doesn't mean your provision claim will be denied - with the help of an expert family law solicitor, you can fight for a favourable outcome. Contact Malouf Solicitors to see how we can help.

Please call us on 02 8833 2000 to speak with a lawyer

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