Should Tasmania Introduce Notional Estate Laws?

In 1977, the New South Wales Law Reform Commission (‘NSWLRC’) recommended that New South Wales’ estate dispute legislation be reformed to broaden the classes of assets that may be affected by a family provision claim. In response, the New South Wales Government enacted the Family Provision Act 1982 (NSW) which enables the court to deem certain non-estate assets as ‘notional estate’ for the purpose of funding successful family provision claims.

Despite the National Committee on Uniform Succession Laws endorsing the New South Wales approach to notional estate laws, it remains the only Australian jurisdiction to have laws that enable the court to utilise non-estate assets to fund provision for successful claimants. The merits of legislation of this type have been considered by the Victorian Law Reform Commission (‘VLRC’) and South Australian Law Reform Institute (‘SALRI’), with SALRI recommending that such laws not be introduced and the VLRC making no recommendation concerning their introduction. In 2016, the former Attorney-General, the Honourable Dr Vanessa Goodwin MLC, requested that the Institute review potential reforms to the Testator’s Family Maintenance Act 1912 (Tas) (‘TFM Act’) to incorporate notional estate provisions in Tasmania. The Issues Paper that preceded this report asked a range of questions to gauge the degree of community support or opposition to the introduction of notional estate laws in Tasmania.

The Issues Paper stimulated significant community interest, with a range of competing views expressed in the 32 formal submissions received. After conducting its review of the current law, considering the feedback received to questions asked in the Issues Paper and examining the research and developments in other jurisdictions, the Institute concludes that notional estate legislation should not be introduced in Tasmania at this time. The Institute does, however, make several recommendations about what such a scheme should look like if introduced and how future reforms might fit with the broader objective of nationally uniform succession laws.