New South Wales Consolidated Acts

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SUCCESSION ACT 2006 - SECT 89

Determination of property to be subject to notional estate order

89 Determination of property to be subject to notional estate order

(cf FPA 27 (2), 28 (2) and (4))

(1) In determining what property should be designated as notional estate of a deceased person, the Court must have regard to the following:
(a) the value and nature of any property:
(i) the subject of a relevant property transaction, or
(ii) the subject of a distribution from the estate of the deceased person or from the estate of a deceased transferee, or
(iii) held by the legal representative of the estate of any deceased transferee in his or her capacity as legal representative of the estate of the deceased transferee,
(b) the value and nature of any consideration given in a relevant property transaction,
(c) any changes in the value of property of the same nature as the property referred to in paragraph (a), or the consideration referred to in paragraph (b), in the time since the relevant property transaction was entered into, the distribution was made, the property became held by the legal representative of the estate of the deceased transferee or the consideration was given,
(d) whether property of the same nature as the property referred to in paragraph (a), or the consideration referred to in paragraph (b), could have been used to obtain income in the time since the relevant property transaction was entered into, the distribution was made, the property became held by the legal representative of the estate of the deceased transferee or the consideration was given,
(e) any other matter it considers relevant in the circumstances.
(2) The Court must not designate as notional estate property that exceeds that necessary, in the Court's opinion, to allow the provision that should be made, or, if the Court makes an order that costs be paid from the notional estate under section 99, to allow costs to be paid as ordered, or both.
(3) If, as a result of a relevant property transaction or of a distribution from the estate of a deceased person or from the estate of a deceased transferee, property becomes held by a person as a trustee only, the Court must not designate as notional estate any property held by the person other than the property held by the person as a trustee as a consequence of any such relevant property transaction or distribution.



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