DISTRIBUTING THE ESTATE: protection against Family Provision Act claims

Date: Sep 06, 2011
Document Type: Article
SECTION 93 – SUCCESSION ACT 2006

A claim for an order from a deceased person’s estate for a family provision can be made up to 12 months from the date of death.

The legal representative of the estate of a deceased person may distribute the property in the estate if:

  • the property is distributed at least six (6) months after the deceased person’s death;
  • the legal representative has given notice in the form approved under Section 17 of the Civil Procedure Act 2005 that the legal representative intends to distribute the property in the estate after the expiration of a specified time;
  • the specified time is not less than thirty (30) days after the notice is given; and
  • the time specified in the notice has expired, and at the time of distribution the legal representative does not have notice of any application or intended application for a family provision order affecting the estate of the deceased person.

A legal representative who distributes property of the estate of the deceased person is not liable in respect of that distribution to any person who was an applicant for a family provision order affecting the estate if the legal representative did not have notice at the time of the distribution of the application and the distribution was made in accordance with Section 93;.

Notice to the legal representative of an application (or intention to make any application) for a family provision order must be in writing and signed in accordance with the court rules for the signing of a document by a party in proceedings.

If the legal representative has notice from any source of a likely or intended claim and if the 12 months from the date of death is not expired, the representative distributes at his/her peril.

If the regime in Section 93 is followed and the administrator, after awaiting the 30 days has no notice of a claim prior to distribution then he or she may distribute without incurring personal liability. An administrator who acts in breach of this obligation may be personally liable to a successful applicant for a family provision order who suffers a loss as a result.

If the administrator has reason to suspect the likely claim by a potential applicant, it is a wise practice to write to that applicant seeking confirmation as to his/her intentions. 

Further information
 
Can I bequeath my heart?
Date: Dec 13, 2011
Can I write my own will?
Date: May 01, 2007
Capacity to make a will
Date: Jun 20, 2014
Caveats in Probate Proceedings
Date: Jul 24, 2014
Choosing your executor
Date: May 09, 2012
Coercion in making a will
Date: Sep 07, 2011
Fixing errors in Wills
Date: Mar 28, 2012
Gambling away inheritance?
Date: Jun 18, 2012
Life changes and wills
Date: Mar 12, 2013
The Problem With Internet Wills
Date: Jun 18, 2014
What are Powers of Attorney?
Date: Jun 16, 2014
What can a will be written on?
Date: Sep 07, 2011
What is a “Benjamin Order”?
Date: Oct 04, 2013
What is a will?
Date: Jan 01, 2008
Who will look after your pets?
Date: Nov 15, 2011
Witnessing a will
Date: Sep 07, 2011
Back to Publication List