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Estate Litigation

What happens when an Executor of a deceased’s Estate distributes that Estate and then someone makes an unexpected claim for a share of it?

The Succession Act allows “eligible persons” to bring a claim against an Estate. The list of eligible persons includes:

  • a spouse, a de facto spouse, a former spouse, a child of the deceased, a dependant grandchild of the deceased,
  • persons who were a member of the deceased’s household,
  • a dependant on the deceased or a person living in a close personal relationship with the deceased.

Any claim must be brought within 12 months of the deceased’s death although it is possible to claim outside that period with the special permission of the Supreme Court.

In Estates where the deceased has died before 1 March 2009, if the Executor distributes the Estate prior to expiry of the 12 month limitation period, they do so at their own risk - even though they may have had no notice of the claim and had published the required newspaper notices under the legislation. The NSW Supreme Court has been particularly critical of Executors who prematurely distribute Estates.

On 1 March 2009, amendments were made to the Succession Act which provide protection to an Executor who distributes the Estate after 6 months provided that the Executor had not had any notice of an intended claim and if the Executor had published the correct newspaper notices.

In many cases there is no risk in distributing early, but in others a risk might exist. For example, the risk might be greater if the deceased had a former spouse or children from an earlier relationship. If you don’t comply strictly with the legislation then you may be personally at risk and may be required to reinstate the assets to the Estate together with interest. Being appointed an Executor is an important role. You should seek legal advice to ensure that you comply with the complicated legislative requirements and don’t end up personally liable to a potential beneficiary. Angus Cox, Partner in charge of our Picton office, is a Law Society Accredited Specialist in Wills and Estates and would be happy to assist you in this role.

Your guide to challenging a Will

When someone dies, it's an emotional and difficult time for those left behind, particularly if they feel that the provisions of their loved ones' Will are unjust.
What should I do if I feel I was dealt with unjustly in the Will?

You can make a claim based on the Succession Act 2006 if you were:

  • Married to the deceased
  • Living in a domestic relationship with the deceased at their time of death
  • A child of the deceased
  • A previous spouse of the deceased
  • A person who at some time was dependent on the deceased or a grandchild or member of the deceased's household.


When assessing circumstances of the challenge to the Will, the Court will consider:

  • The future financial needs of all parties
  • How individuals supported each other financially
  • Whether they own property together
  • Reputation and public aspects of the relationship
  • Level of mutual commitment; shared life
  • Character, behaviour and financial situation of the person challenging the Will
  • Any contribution made by that person to the deceased's welfare or estate


An application to challenge a Will under the Act must be made within 12 months of the time of death.

If you require any further information please contact us.

 

MAKE AN APPOINTMENT
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ABN 65001889317

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