A preservation order, also called a freezing order or Mareva order, is an extraordinary interim court order that stops someone from selling, transferring or diminishing assets while an estate dispute is being heard. In practical terms, it stops a family member, executor or third party from emptying a bank account or offloading property before a court decides who is entitled to it, so a future judgment isn’t worthless on paper. Courts describe these orders under the Federal Court’s freezing orders practice note, and state courts apply near-identical principles under Practice Note No 1 of 2008. Simons George Legal handles these applications regularly for executors and beneficiaries who suspect assets are about to disappear. If you think that’s happening in your matter, get advice fast. These orders are often sought urgently, sometimes without even notifying the other side.
Key Takeaways
A preservation order protects estate assets by legally restraining a party from disposing of or diminishing them while a court determines the underlying dispute.
| Point | Details |
|---|---|
| Definition matters | A preservation, freezing or Mareva order restrains dealing with assets to stop a future judgment being frustrated. |
| Two-part legal test | Applicants must show a good arguable case and a real risk of dissipation before a court will grant one. |
| Disclosure is strict | Ex parte applicants must give full and frank disclosure, or risk the order being set aside with costs against them. |
| Scope has limits | Orders typically cap a Relevant Amount and carve out living, business and legal expenses. |
| Simons George Legal assists | The firm handles urgent preservation order applications alongside contested wills and family provision claims, with No Win, No Fee available for eligible cases. |
Table of Contents
- What is a preservation order in an estate?
- When does an estate dispute need one?
- What must you prove to get a preservation order?
- What does a preservation order actually restrain?
- How does the application process work?
- What happens if someone breaches a preservation order?
- Are there alternatives to a preservation order?
- How does Simons George Legal handle these applications?
- A quick note on timing
- Protecting estate assets before it’s too late
- Funding Your Legal Matter — No Win, No Fee
- Where to check the primary rules
- Sources
- FAQ
What is a preservation order in an estate?
Courts use “preservation order,” “freezing order” and “Mareva order” interchangeably. Each does the same job: stop a respondent from dealing with assets so the court process isn’t frustrated or abused.
A typical order restrains dealing with assets up to a defined “Relevant Amount,” matched to the estimated value of the disputed claim. It might name specific bank accounts, a property title, or cover assets more broadly, and it can extend worldwide or stay limited to Australia depending on where the risk lies. Because it’s granted urgently and often before the other party even knows an application has been filed, courts treat it as an extraordinary step, not a routine one. Practice Note No 1 of 2008 includes a model form of order that shows exactly how that wording is structured.
When does an estate dispute need one?
Preservation orders come up in fairly predictable situations. Watch for:
- A beneficiary or executor about to sell or transfer estate real property
- Sudden or unexplained withdrawals from estate bank accounts
- Third parties (a business partner, a family trust, a company) holding assets that should form part of the estate
- Transfers made shortly before death that raise notional estate concerns, where property moved outside the formal estate but a court could still treat it as available for a claim
Respondents aren’t limited to executors. Beneficiaries, banks, companies, and anyone controlling the disputed assets can be named. Notional estate issues complicate scope further, since assets moved before death sit outside the will but may still be clawed back for family provision purposes.
What must you prove to get a preservation order?
Courts apply a two-part test before granting a freezing order. First, the applicant needs a good arguable case on the underlying claim, a lower bar than final proof at trial but more than a bare assertion. Second, there must be a real risk that assets will be dissipated, hidden or moved beyond the court’s reach before the case is resolved.
Evidence of that risk usually includes:
- Sudden or large cash withdrawals
- Transfers to related parties or offshore accounts
- Unusual property dealings inconsistent with normal estate administration
- Behaviour suggesting a deliberate attempt to place assets out of reach
Because many applications are made ex parte (without notice to the other side), the applicant carries a strict duty of full and frank disclosure. That means telling the court everything relevant, including facts that hurt your own case. The NSW civil benchbook on freezing orders sets out this obligation clearly, and both it and the Federal Court’s GPN-FRZG practice note are the authorities courts rely on for the test and procedure.
Pro Tip: Courts take non-disclosure seriously. Omitting an inconvenient fact, even unintentionally, can get the entire order set aside and leave you facing a costs order.
What does a preservation order actually restrain?
Orders rarely freeze everything a respondent owns. Courts commonly cap the restraint at a “Relevant Amount” tied to the likely value of the claim, rather than the respondent’s total wealth, and they name specific accounts, property titles or asset classes rather than issuing a blanket freeze. Whether the order reaches worldwide assets or stays confined to Australia depends on where the flight risk actually sits, according to the NSW benchbook’s commentary on scope.
Most orders carve out reasonable living expenses, ongoing business costs and legal fees, so a respondent isn’t left unable to function. Ex parte orders are short by design, typically running only until a return day, with liberty reserved for the respondent to apply to vary or discharge the order once they’ve had a chance to respond.
How does the application process work?
Getting a preservation order moving quickly follows a fairly consistent sequence:
- Initial assessment of urgency and the merits of the underlying claim
- Preparation of affidavit evidence and supporting annexures
- The ex parte hearing, where the applicant gives undertakings to the court
- A return day or inter partes hearing, where the respondent can respond
- A decision to continue, vary, or discharge the order
Before that first hearing, you’ll typically need to assemble:
- An affidavit setting out the claim and its basis
- An itemised estimate of the claim’s value
- Bank statements and transaction histories
- Property titles and valuations
- Witness statements and, where relevant, company records
- Evidence of transfers made out of the estate
Return days are often set shortly after the original order, so having this evidence organised before you approach the court matters enormously.
Pro Tip: Generic order wording rarely works against third parties. Naming specific account numbers, property folio identifiers or transaction dates in the draft order is what lets a bank or land registry actually enforce it, a point the NSW benchbook emphasises directly.
What happens if someone breaches a preservation order?
Breaching a preservation order is contempt of court, and the consequences can be severe: fines, sequestration of assets, and in extreme cases, imprisonment. Courts can also make orders against third parties, like a bank, who knowingly assist a breach.
The risk cuts both ways. If an applicant’s ex parte application left out material facts, the order can be set aside entirely, and the applicant may face an indemnity costs order and real reputational damage. Executors and beneficiaries served with an order should comply immediately, then move quickly to apply for variation if the terms are genuinely broader than the risk justifies.
Are there alternatives to a preservation order?
A freezing order isn’t the only tool available, and it often works alongside rather than instead of these options:
- An interim grant of administration, letting an administrator secure assets while a full grant is contested
- Interlocutory injunctions under rules like UCPR r 25.3, covering the preservation of property more broadly
- A caveat lodged over land at risk of sale or transfer
Interim grants suit situations where an estate needs day-to-day protection while probate is contested. Caveats work well specifically for real property. None of these rule out also seeking a preservation order where the risk of dissipation is more serious.
How does Simons George Legal handle these applications?
Speed and clean evidence win these cases. Simons George Legal’s process runs through initial assessment of urgency and merits, evidence gathering, drafting the affidavit and proposed order, the ex parte application itself with its undertakings, then attending the return hearing to negotiate terms or resist variation.
For an urgent appointment, bring what you can of the following:
- The will, death certificate, and any grant of probate or letters of administration
- Recent bank statements and correspondence
- Property titles
- Details of the suspected transfer or dissipation
- Contact details for any banks or third parties holding relevant assets
Urgent applications move fast, and clean, well-organised disclosure at the outset makes the difference between an order granted on the papers and one bogged down in procedural argument.
A quick note on timing
We’ve seen estate disputes where a week’s delay meant the difference between preserving an asset and chasing it through a dissipated account. If you suspect assets are being moved, gather what documents you can and contact Simons George Legal promptly. Timing genuinely decides whether a preservation order is even worth applying for.
Protecting estate assets before it’s too late
If you’re staring down a possible breach of trust by an executor, a beneficiary quietly transferring property, or a third party sitting on assets that should belong to an estate, waiting rarely helps your case. Simons George Legal acts on urgent estate litigation matters, including preservation order applications, contested wills, and family provision claims, and also advises executors on probate and estate administration where a preservation order affects how an estate is being wound up.
Every new client gets a complimentary 30 minute consultation, which is enough time for Simons George Legal to assess whether your situation genuinely calls for urgent court intervention and what evidence you’d need to get there fast. If you suspect estate assets are at risk right now, book a consultation with the wills and estates team and bring whatever documents you have. Acting within days, not weeks, is often what makes an application viable at all.
Funding Your Legal Matter — No Win, No Fee
Cost is often the biggest reason people delay acting on a legitimate estate dispute, and delay is exactly what puts assets at risk. Simons George Legal offers No Win, No Fee arrangements for eligible cases, including many contested estate and inheritance matters, so you’re not forced to weigh up urgent legal protection against upfront legal bills. Eligibility gets checked during your free initial consultation, where the firm reviews the merits of your claim and explains, in plain terms, whether a No Win, No Fee arrangement applies to your circumstances. This structure exists to remove the cost barrier for people with a genuine claim, not to replace proper case assessment. If you believe estate assets are at risk and cost has been holding you back, book a free case assessment and find out where you stand.
No Win, No Fee arrangements are subject to case eligibility and a written costs agreement. Liability limited by a scheme approved under Professional Standards Legislation.
Where to check the primary rules
- Practice Note No 1 of 2008 and the Federal Court’s GPN-FRZG set out the standard form and test for freezing orders
- UCPR interim preservation provisions cover interlocutory protection of property more broadly
These practice notes and benchbook commentary are what courts themselves rely on when deciding these applications.
This article is general information, not a substitute for advice from a qualified lawyer. Consult a qualified legal professional about your own circumstances before acting on anything here.
Sources
- Freezing Orders Practice Note (GPN‑FRZG) — Federal Court
- Freezing orders — Judicial Commission of New South Wales civil benchbook
- Practice Note No 1 of 2008 — Freezing orders (ACT Courts)
- Interim preservation orders — Judicial Commission of New South Wales civil benchbook
FAQ
What is an asset preservation order?
An asset preservation order, also called a freezing or Mareva order, is a court order stopping someone from selling, transferring or reducing the value of assets while litigation is ongoing, so a future judgment can still be enforced.
What does asset preservation mean in an estate dispute?
It means a court has restrained an executor, beneficiary or third party from dealing with specific estate assets, such as bank accounts or property, until the underlying inheritance dispute is resolved.
How long does a preservation order last?
Ex parte preservation orders are typically short, running only until a return day set within a day or two, after which the court decides whether to continue, vary or discharge the order.
Can a preservation order cover assets held overseas?
Yes. Depending on the risk involved, an order can extend to worldwide assets rather than being limited to those located in Australia.
What happens if someone breaches a preservation order?
Breaching a preservation order is contempt of court and can lead to fines, asset sequestration, or in serious cases, imprisonment, along with possible orders against any third party that assisted the breach.