Property that passed to a surviving spouse by right of survivorship or estate distribution cannot be designated as notional estate of the deceased under ss 23 or 24 of the Family Provision Act 1982 (NSW) after the surviving spouse's death, as the property has by then passed under the spouse's own will to the spouse's beneficiaries. The 3% discount tables from Todorovic v Waller remain applicable to the capitalisation of future care costs in family provision proceedings, notwithstanding the 5% rate prescribed by the Civil Liability Act 2002 (NSW) for negligence claims. Where a claimant has a severe disability, provision may appropriately be structured through a special disability trust under Part 3.18A of the Social Security Act 1991 (Cth) to preserve the claimant's social security benefits.
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