Australia's #1 for Law

Join 150,000 Australians every month. Ask a question, respond to a question and better understand the law today!

NSW Suing Executors of a Will over Distributed Deceased Estate?

Discussion in 'Wills and Estate Planning Law Forum' started by Steve500, 14 May 2015.

  1. Steve500

    Steve500 Well-Known Member

    10 March 2015
    Likes Received:
    If a deceased Estate has been distributed then often, the chances of anyone making a family provision claim and re-couping what they maybe eligible for are "vanishingly small", if time passes eg 2 years etc, since the estate has been distributed. Can any one who was eligible to make a family-provision claim, sue the Executors on the will for damages, for negligence, if they refused to give a copy to specific people eligible to make a family-provision claim upon request, and as a result the normal time elapsed to make a claim (12-months from deceased death) and the Estate has been distributed?
  2. Sophea

    Sophea Guest

    Under s93 of the Succession Act, an executor is only required to publish a Notice of Intended Distribution of the estate in the manner and form prescribed under s17 Civil Procedure Act 2005 NSW. As long as certain other conditions are met, the executor will not be liable for a claim for family provision that was unknown to them at the time of distribution. The published notice must give 30 days notice in which to claim, and must not distribute the estate until at least 6 months after the date of death and after the 30 day period has expired.

    An executor or administrator who acts in breach of his or her statutory notice obligations may be personally liable to a successful applicant who suffers loss as a result. If the executor suspects that a claim is likely to be made by a potential applicant, it is prudent (but not necessarily a legal requirement) for them to contact the potential applicant seeking confirmation as to his or her intentions. If the above steps are followed and an application for a family provision order is made after the property of the estate has been distributed then, provided no notice of the application was received at the time of distribution, the executor will not be liable.
    winston wolf likes this.

Share This Page