The daughter of a wealthy family has found that her father died bankrupt, and that all of his

assets are held in a family trust.

The father lived in Victoria and that is where the trust was established.

She wanted to know whether she could commence something like a Will dispute, by claiming

against the assets of the trust, but as she has never been distributed anything through the trust,

she has no claim against the trust assets at all.

If she had lived in New South Wales it might be possible under the “Notional Estate”

provisions to access the trust assets for any capital award that may be given to her if she

contested the Will.

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Comments by Terry Johansson, Specialist Wills and Estates Lawyer, CWPL

In Victoria and most mainland states, the law does not enable someone to access assets in family

trusts, in order to satisfy a claim, if there are not sufficient assets in the estate. The situation is

different in NSW, where notional estate provisions apply.

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