An executor is expected to administer and distribute an estate without unnecessary delay. In New South Wales, the expectation is for an estate to be distributed within 12 months of the date of death. To account for the possibility of a Family Provision Claim being made, executors usually only start distributing an estate after six months. However, any eligible person wanting to make a Family Provision Claim is required to do so within 12 months of the date of death. Exceptions to this are allowed, but there has to be sufficient cause for the claim to be made after 12 months.
What Is a Family Provision Claim?
A Family Provision Claim is an application made to the Supreme Court of NSW by someone who feels they were left out of a Will without good reason or believes that what was left to them is insufficient. Family Provision Claims can only be made by ‘eligible persons’, as defined by s 57 of the Succession Act 2006 (NSW).
Who Must Be Notified of a Family Provision Claim?
It is recommended that the executor be notified immediately of a Family Provision Claim. Ideally there would be two notifications; the first advising them of the intention to bring a Family Provision Claim, and the second advising them that the application has been made. This allows for the distribution of the estate to be stopped while the claim is being considered.
When challenging the validity of a Will, a probate caveat can be filed with the court to prevent the executor from administering the estate. But a probate caveat is not used for Family Provision Claims, so notifying the executor is the only way to delay the distribution of the estate.
What Happens if 12 Months Have Already Passed?
Late applications for a Family Provision Claim can only be considered by the Supreme Court. However, the executor should still be consulted about the intention to make a late application.
The court considers two things before deciding whether to allow a late application:
- Does the applicant have sufficient reason for making a late application, or do all parties agree to the late application; and
- Have all the assets of the estate already been distributed and would allowing the late application unfairly prejudice other beneficiaries.
An example of sufficient reason for making the late application might be that the claimant was unaware—and had not been notified—of the testator’s death. And while after consulting with the executor all parties can agree to the late application, the final decision still rests with the Supreme Court.
Claims on an estate are neither trivial, nor simple. Which is why you should always seek professional legal advice before proceeding. Whether you are the person wanting to make a Family Provision Claim or are the executor of an estate that a Family Provision Claim is being made against, at Nash Allen Williams & Wotton, we have solicitors with extensive experience in matters relating to Wills, Probate, and Family Provision Claims. Contact us to schedule an appointment to discuss your matter professionally and without unnecessary delays.