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FAMILY PROVISION ACT 1982 - SECT 28 Designation of property as notional estate--powers and restrictions

This legislation has been repealed.

FAMILY PROVISION ACT 1982 - SECT 28

Designation of property as notional estate--powers and restrictions

28 Designation of property as notional estate--powers and restrictions

(1) On an application in relation to a deceased person for an order for provision in favour of an eligible person, the Court shall not make an order designating property as notional estate of the deceased person unless the deceased person left no estate or unless it is satisfied:
(a) that the estate of the deceased person is insufficient to allow the making of provision that, in its opinion, should be made, or
(b) that, by reason of the existence of other eligible persons or the existence of special circumstances, provision should not be made wholly out of the estate.
(2) On an application in relation to a deceased person, the Court shall not make an order designating as notional estate of a deceased person property in excess of that necessary to allow the making of provision that, in its opinion, should be made.
(3) The exercise by the Court of its power under section 23, 24 or 25 to make an order designating as notional estate of a deceased person property held by, or on trust for, a person does not limit or restrict any further exercise by the Court of that power.
(4) Where, as a result of a prescribed transaction or a distribution made from the estate of a deceased person, property becomes held by a person as a trustee only, the Court shall not make an order under section 23, 24 or 25 by reason of the prescribed transaction or distribution in respect of any property (other than the trust property) held by, or on trust for, the person.
(5) On an application in relation to a deceased person, being an application:
(a) made pursuant to an order under section 16 allowing the application to be made, or
(b) for an order under section 8 for additional provision,
the Court shall not make an order designating property as notional estate of the deceased person by reason of a prescribed transaction or a distribution unless it is satisfied:
(c) that:
(i) the property was the subject of the prescribed transaction or distribution,
(ii) the person by whom it is held holds the property as a result of the prescribed transaction or distribution as trustee only, and
(iii) the property is not vested in interest in any beneficiary under the trust, or
(d) that there are other special circumstances (including, in the case of an application made as referred to in paragraph (a), the incapacity, during any relevant period, of the person by or on whose behalf the application is made) which justify the making of an order so designating the property.