A family provision order is a court order made under Chapter 3 of the Succession Act 2006 (NSW) directing that provision be made from a deceased person’s estate, or notional estate, for the maintenance, education, or advancement in life of an eligible person. As defined in section 57 of the Act, an eligible person is entitled to apply for such an order.
Notional Estate in NSW
In New South Wales, notional estate refers to assets that are not legally part of a deceased person’s estate but can be considered for a family provision claim. This mechanism allows the court to include assets such as jointly owned property, superannuation, or property transferred before death, where the deceased attempted to reduce the amount available for eligible persons. The Court can find the plaintiff’s legal basis for a notional estate in s63 of the Succession Act 2006 (NSW), which details how assets outside the estate can be included in estate assessments.
The Court can make a family provision order from the estate of a deceased person, which includes any property that would vest in the executor on a grant of probate or in the legal representative on a grant of administration with the Will annexed. Once estate property has been lawfully distributed following s93, it is generally not subject to a family provision order, unless otherwise provided. Property held by the legal representative as trustee is treated as undistributed until it is vested in the beneficiary or the purpose for which it is held. In addition, orders may extend to property outside the estate, or already distributed, where it is designated as notional estate under Part 3.3.
Section 80 of the Succession Act 2006 (NSW) allows the court “claw back” such assets so that an eligible person can still receive adequate provision. On its own motion or on the application of a person seeking a family provision order, the Court may declare specific property notional estate if satisfied that the deceased entered into a relevant property transaction to which the section applies. Relevant transactions include those made within three years of death with the intention of limiting provision for eligible persons; those made within one year of death where the deceased’s moral duty to provide for a dependant was substantially greater than the obligation underlying the transaction; and transactions that take effect on or after death.
Property may be designated as a notional estate if it is held by, or on trust for, a person or trust that received it due to such a transaction, regardless of whether the property was the subject of the transaction.
Types of Notional Estate
- Transfers within three years of death: Property gifted to reduce provision for eligible persons.
- Transfers within one year of death: Property transferred when a more substantial obligation to provide for an eligible person existed.
- Automatically passing assets: Jointly owned property, life insurance proceeds, and superannuation benefits.
How Family Provision Orders Work
An eligible person applies under the Succession Act. The court assesses whether a relevant property transaction occurred. If satisfied, the court issues a notional estate order, treating the property as part of the estate. This may override the rights of the property’s legal owner to ensure an eligible person’s claim is met.
Key Points
Notional estate is unique to NSW. It balances a deceased person’s freedom to dispose of property with their duty to an eligible person.
Property is only included if the court makes an order—it is not automatic.
Background
In Skidmore v Salvatore [2025] NSWSC 712 (Kunc J), the plaintiff and defendant are the children of the late Dragica Lukac (the deceased), who died in January 2023.
The deceased estate was valued at approximately $59,000, with additional assets from a property transferred to the defendant and later sold, resulting in about $536,000 held in trust. The plaintiff sought family provision and an injunction to freeze $300,000 of the proceeds.
The plaintiff sought family provision from the deceased’s estate, which had already been distributed. The Court accepted the proceeds as liable to designation as a notional estate.
The plaintiff also tried to amend the proceedings to add an equitable claim challenging a transfer. Still, the Court dismissed this amendment as it was late, unexplained, and inconsistent with the efficient administration of small family provision estates.
The plaintiff’s only standing was via the family provision mechanism.
On the injunction application, the Court restrained the defendant from dealing with $250,000 of the proceeds. Section 62(3) of the Succession Act 2006 (NSW) did not prevent such orders; the Court had power under both the Supreme Court Act 1970 (NSW) and inherent jurisdiction. The plaintiff’s case was arguable, and the balance of convenience favoured preserving funds, with no prejudice to the defendant.
Key point
Courts will not allow late “second bite” amendments in family provision cases, but will use injunctions to protect notional estate proceeds pending determination.
The court dismissed the plaintiff’s request to amend the claim due to procedural delays and lack of standing, as she was not a beneficiary. However, the court granted an injunction of over $250,000, noting that the law permits the restraint of assets that may be designated as notional estate to prevent improper dealing.
The court found that the plaintiff had a plausible, though not strong, case and prioritised preventing potential prejudice, as the defendant had conceded that restricting access to the proceeds would not cause financial harm before the final judgment.
Skidmore v Salvatore [2025] NSWSC 712 highlights several practical implications for legal practitioners. Injunctions to freeze assets can be successfully pursued even if procedural challenges arise, provided there is a plausible claim and minimal risk of harm from maintaining the status quo. It underscores the importance of timely action and establishing a clear standing to strengthen claims.
Practitioners should be vigilant about potential delays and ensure their clients’ applications are filed promptly to avoid dismissal due to procedural issues. This demonstrates that strategic litigation can protect assets from dissipation pending the resolution of family provision claims.
The deceased passed away on January 15, 2023. The plaintiff commenced family provision proceedings on 11 November 2024—five months out of time under s 58(2) of the Succession Act 2006 (NSW)—and sought orders designating certain assets, including the Liverpool property, as notional estate.
During the proceedings, evidence revealed that the property had been transferred to the defendant – the deceased’s other daughter “without monetary consideration” as part of an “intergenerational assignment.” The property was later sold, with the proceeds preserved under an undertaking pending the outcome of the Family Provision.
In May 2025, the parties did not reach a settlement at mediation. The plaintiff’s solicitor then raised concerns that the deceased, who spoke little English, may not have understood the transfer, which was witnessed by the same solicitor for both parties without the benefit of translation or independent advice. The plaintiff’s solicitor alleged this created a presumption of undue influence and possible unconscionable conduct, and indicated that the defendant might pursue separate proceedings to set aside the transaction. The defendant’s solicitor denied these claims.
In June 2025, the plaintiff filed a notice of motion seeking to amend her claim to challenge the transfer, alleging: directly
Undue influence: The defendant, as a child and carer, held a position of ascendancy over the deceased, who was elderly, frail, and lacked proficiency in English. The transfer was reportedly neither voluntary nor informed.
Unconscionable conduct: The deceased was in a position of special disadvantage, which the defendant exploited, knowing her mother lacked the capacity to assess the transaction properly.
Relief sought included declarations that the property sale proceeds formed part of the deceased’s estate and were held on trust for distribution.
Court’s Consideration
The amendment application was treated according to the principles outlined in Aon Risk Services v ANU (2009) 239 CLR 175 and section 64 of the Civil Procedure Act 2005 (NSW). The plaintiff conceded the allegations were known to her when the proceedings commenced. The defendant gave no adequate explanation for raising the amendment so late, other than the defendant’s solicitor’s refusal to engage with the concerns.
These delays could disadvantage the party seeking amendments, as late applications can result in increased costs, procedural inefficiencies, and potential dismissal if the lateness affects the court’s or other parties’ ability to prepare. Practitioners must advise their clients to act promptly and provide comprehensive justifications for any delays to mitigate these risks.
This Division has no clear precedent on whether the Court can prevent dealings with assets that may be classified as a notional estate. The better view is that section 62(3) does not limit the Court’s powers under sections 23 or 66(4) of the Supreme Court Act 1970. Allowing the Court to restrain transactions involving property that could be designated as notional estate, provided the usual criteria for an interlocutory injunction are met. An interpretation better aligned with the objectives of the Act than the view advanced by the defendant’s counsel. It is essential to note that no appellate decision conclusively resolves this matter, indicating that the interpretation remains subject to further judicial consideration and may continue to evolve.
Section 33 of the Interpretation Act 1987 (NSW) requires that where a provision has more than one possible meaning, the court must prefer the construction that best advances the legislation’s underlying purpose or object.
Key Points
- Purposive interpretation – Courts must interpret provisions concerning their legislative purpose.
- Legislative intent – The chosen meaning should align with what Parliament intended.
- Broad scope – Applies to both Acts and statutory rules.
- Express or implied purposes – The legislation may state the purpose, or it may be inferred.
- Preference rule – If two meanings are possible, the one promoting the Act’s object is preferred.
The Family Provision Act 1982 (NSW) preamble states that one of its purposes is
“to ensure that adequate provision is made for the members of the family of a deceased person, and certain other persons, from the estate of the deceased.”
Restoring assets to the estate through notional estate provisions is essential to achieving the Act’s purpose. Interpreting section 62(3) to restrict the Court’s power to prevent dissipation of assets that may be designated as notional estate would undermine these provisions, particularly when considering whether there is a serious question to be tried and the balance of convenience.
Kunc J also notes that both Young J and Gzell J expressed doubts about the Court’s power concerning assets that could be, but were not yet, designated as notional estate. With respect, they did not elaborate on the reasons behind their doubts. Kunc J respectfully held that their reservations likely relate to whether an applicant could sufficiently demonstrate a serious question to be tried, given the additional statutory requirements beyond those for making a family provision order from the estate.
The issue of restraining what might be designated notional estate arose before Gzell J in Lo Surdo v Public Trustee [2003] NSWSC 837. In that case, the potential notional estate was property that had been distributed to the second defendant. After considering the cases, including Massie, Deguara, Packo, and Moon, his Honour concluded:
“50 In the instant circumstances, the second defendant refused to give an undertaking that she will not dispose of the properties in question. On the other hand, there is no evidence of any threat to sell either property. Unlike the refusal in Packo with respect to money that could easily be dissipated, the refusal in this case is, in my opinion, of less impact
51 The properties having been distributed to the second defendant, I share the concerns of Young CJ in Eq as to whether there is power to restrain such a third party from dealing with property that may never be designated as notional estate.52 Gzell J bases his decision, however, on an exercise of discretion.
53 There is no evidence of an immediate threat to dispose of the property. The plaintiff delayed in bringing the application. The inference Kunc J draws is that it was brought in response to the second defendant’s notice of motion. The second defendant is in the position of a third party, and more needs to be demonstrated than would apply under the court’s inherent power to preserve an estate pending the determination of an application under the Family Provision Act 1982. The plaintiff’s case is by no means strong in light of the difficulty he faces in overcoming the restriction in s 28 in light of the size of the estate and the obligation owed by the deceased to her daughter.” (Emphasis added.)
Because his analysis is referred to in later cases, the next decision of note is the judgment of Campbell J in Grizonic v Suttor [2004] NSWSC 137. His Honour said:
“Concerning other statutes where courts have a power to change the property rights of parties, it is recognised that the court can grant an interlocutory injunction to protect the subject matter of the suit. When a claim is made under the Family Provision Act 1982, the Court has the power to grant an interlocutory injunction requiring property that might be the subject of an order not to be disposed of until the suit is heard. This is a particular example of the Court’s jurisdiction to preserve the subject matter of a suit pending the hearing: In the Estate of Gough, Deceased; Gough v Fletcher (1973) 5 SASR 559; Rayner v Schuttler (Supreme Court of New South Wales, McLelland J, 29 January 1985, unreported); Packo and Another v Packo (1989) 17 NSWLR 316; Moon v Gordon (Supreme Court of New South Wales, Young J, 30 April 1996, unreported); Lo Surdo v Public Trustee [2003] NSWSC 837 (Gzell J). In Deguara v Mercieca (Supreme Court of New South Wales, 23 August 1988, unreported), Powell J expressed doubts about the existence of such a jurisdiction, but Deguara was not followed in Packo.
The Family Court of Australia can grant an interlocutory injunction under s.114 Family Law Act restraining a party from disposing of the property of the parties pending the institution of proceedings seeking a property settlement under s.79: In the Marriage of Sieling [1979] FamCA 23; (1979) 4 Fam LR 713; (1979) 24 ALR 357; In the Marriage of C A Rennie and J Higgon [1981] FamCA 80; (1981) 7 Fam LR 715. As well, the Family Court can grant an injunction to restrain a party from instituting proceedings in another court which would adversely affect the right of a party to seek a property settlement under the Family Law Act: In the Marriage of Esmore [1979] FamCA 67; (1979) 5 Fam LR 762; In the Marriage of Bak [1979] FamCA 70; (1979) 6 Fam LR 411; In the Marriage of Smith and Saywell [1980] FamCA 45; (1980) 6 Fam LR 245; Dembitzer v Mills [1980] 2 NSWLR 697 at 702. All these cases are examples of interlocutory injunctions aimed at preserving the subject matter of the suit.
On a similar basis, it would be possible for a plaintiff seeking orders under s.20 Property (Relationships) Act to obtain an interlocutory injunction, in appropriate circumstances, to prevent an application under s.66G from being made or proceeded with concerning property over which orders were sought under s.20 Property (Relationships) Act.” (Emphasis added.)”
The issue before his Honour was whether there was a proper basis to stay an application under s 66G of the Conveyancing Act 1919 (NSW). His Honour’s observations are therefore obiter dicta, but entitled to great respect. However, it is not apparent whether His Honour intended his summary of the FP Act authorities to encompass the notional estate. The examination of those authorities that I have set out above makes clear that His Honour’s summary is, with respect, correct as to restraining the distribution of actual estate, but is not supported by those authorities as to notional estate.
That J C Campbell J’s observations in Grizonic are both obiter dicta and…not an accurate reflection of the state of the authorities in relation to restraining property that may be designated as notional estate, does not appear to have been drawn to the attention of Barrett J (as his Honour then was) in Maiolo, a decision delivered in March 2008. His Honour was present to consider an application to restrain dealing with a potential notional estate. His Honour appears only to have been referred to Grizonic, of which his Honour said (at [9]) “The object of injunctive relief of this kind is to preserve the subject matter of the litigation. The earlier differences of opinion between judges of this Division as to the basis of the jurisdiction have been laid to rest. I refer, in particular, to the handy summary of the present position at paragraph [11] of Grizonic (set out in [64] above). Barrett J therefore accepted that he had jurisdiction in relation to the potential notional estate but refused the injunction on discretionary grounds.
The next step in the chronology is the introduction of s 62(3) a few months later. Given the history of doubt and division disclosed by the authorities I have set out above and the intervention of an expert panel including judges of the Equity Division in the drafting of s 62(3) (see [50] above), I am fortified in the construction of s 62(3) which I have preferred in [40] above, by the conclusion which I infer from that history that s 62(3) was introduced to resolve the mischief of doubt about the Court’s powers to restrain a distribution of the actual estate pending determination of a family provision application. Neither the words of the section nor that view of the mischief support the conclusion that s 62(3) was intended to say anything about restraining a notional estate, or that by confirming that jurisdiction it was designed to “cover the field” and foreclose an order in relation to a notional estate.
Finally, counsel directed the Court to only one authority under the Act, the decision of Hallen J in Boaz v Hyde [2014] NSWSC 1591. This was an application to restrain dealing in actual estate, about which there was no dispute regarding the Court’s jurisdiction. His Honour said:
“19 Turning, then, to the Plaintiff’s claim for an interlocutory injunction, there was no dispute about the jurisdiction of this court to grant an interlocutory injunction to restrain the Defendant from selling the Earlwood property. In Grizonic v Suttor [2004] NSWSC 137, at [11], Campbell J (as his Honour then was) wrote:
“Concerning other statutes where courts have a power to change the property rights of parties, it is recognised that the court can grant an interlocutory injunction to protect the subject matter of the suit. When a claim is made under the Family Provision Act 1982, the Court has the power to grant an interlocutory injunction requiring property that might be the subject of an order not to be disposed of until the suit is heard. This is a particular example of the Court’s jurisdiction to preserve the subject matter of a suit pending the hearing….”
20 However, the Act, itself, does not contain any provision permitting the court to make an order restraining an executor, in whom the estate property is vested, from dealing with those assets, other than in respect of final or partial distribution, pending its determination of an application for a family provision order: see s 62(3) of the Act. (Of course, s 66(4) of the Supreme Court Act 1970 (NSW) provides that the Court may, at any stage of proceedings, on terms, grant an interlocutory injunction in any case in which it appears to the Court to be just or convenient to do so.)
21 There was also no dispute that “like other applications for an interlocutory injunction it is necessary to consider whether [a Plaintiff has established] a reasonable prospect of ultimate success in obtaining an order which would affect the property in question”, or, put another way, there is a sufficiently seriously arguable case for final relief and that the balance of convenience favours the grant, or the withholding, of interlocutory injunctive relief, essentially to preserve the status quo in the meantime.” (Emphasis added.)
Although not the subject of argument before him, I respectfully agree with both his Honour’s confined reading of s 62(3) as being only concerned with final or partial distribution, and his Honour’s implicit acceptance of the availability of s 66(4) of the Supreme Court Act.
Cases such as Packo v Packo 17 NSWLR 316, Moon v Gordon (unreported, SC (NSW), 30 April 1996) Young J, Grizonic v Suttor [2004] NSWSC 137; 12 BPR 22797, and Maiolo v Caristo [2008] NSWSC 236 confirm that the Court has inherent authority to issue interlocutory orders to preserve the subject matter of proceedings. This power extends to assets classified as notional estate, provided the usual criteria for such orders are met. The Court indicated it was inclined to grant an injunction until the final determination of the family provision proceedings.
In proceedings between two daughters of the deceased, the plaintiff sought family provision out of the notional estate after the estate was exhausted, applying for an injunction over part of the $536,000 proceeds.
The Court accepted that the plaintiff was an eligible applicant and that leave to file out of time would likely be granted. The proceeds could be designated as notional estate, and the defendant—who stood to receive a significant balance—would not suffer hardship if part was restrained.
The plaintiff relied on her modest assets, financial need, and evidence that estrangement stemmed from family abuse. The defendant emphasised her financial responsibilities, including two children and divorce proceedings.
The Court held the plaintiff had a prima facie but “not hopeless” claim, though not strong. Weighing costs and convenience, it granted an injunction over $250,000 (rather than the $300,000 sought), leaving $286,000 immediately available to the defendant. The Court referred the matter for an early final hearing
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