DISTRIBUTING THE ESTATE: protection against Family Provision Act claims

Date: Sep 06, 2011
Document Type: Article

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. 

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