Executors and Administrators (both of which are also known as legal personal representatives (LPRS) are appointed to administer the estate of a deceased person. Executors are appointed by the last Will of the deceased person, while Administrators are appointed by the Supreme Court when there is no Will or there is a Will which does not appoint an Executor. LPRS are required to carry out (usually done with the assistance of a Solicitor) the estate’s proper administration and, where the deceased left a Will, ensure its provisions are upheld.
From time to time, LPRS face a claim to the fairness of the provisions of a Will or distribution of an estate in accordance with the intestacy rules (where the deceased never left a Will). These are known as family provision claims under the Succession Act 1981 (Qld).
Family provision claims
An eligible person may make a claim for provision from the estate of a deceased person if under the Will or the intestacy rules (where there is no Will), adequate provision has not been made for the eligible person. An eligible person includes:
- the deceased’s spouse, including their de facto partner, at the time of death;
- a child of the deceased person;
- a dependant of the deceased being the deceased’s parent, a parent of a surviving child under the age of 18 years of the deceased or a person under the age of 18 years.
Notice of intention to make a claim should be given to the Executor or Administrator within 6 months after the death and, if not earlier settled by agreement, a claim must be made with a Court no later than 9 months from the date of the deceased’s death, subject to leave of the Court.
Upon eligibility being established, it must be shown that the deceased person failed to leave the claimant with adequate provision for their proper maintenance and support. If this can be shown, the Court must then determine what provision, or further provision, if any, should be made for the claimant from the deceased’s estate.
The Court will consider a range of factors, including the value of the estate, the financial position of the claimant, the circumstances, financial position and needs of other beneficiaries and the relationship between the deceased person and the applicant and the deceased person and other beneficiaries.
The role of LPRS
When faced with a family provision claim, LPRS have a duty to uphold the provisions of the Will (or distribution on intestacy) and preserve the estate assets. However, in doing so, LPRS should consider resolving a meritorious claim for provision that is likely to succeed in a Court proceeding. For such claims, LPRS should aim to negotiate a settlement and avoid costly and risky litigation that may deplete estate assets, noting that the legal costs of a successful claim are usually borne by the estate on an indemnity basis.
Decisions regarding the prospects of success of a claim for provision should be made with the guidance of a lawyer on instructions from LPRS as to the circumstances of the estate, the parties and the relationships between the parties and the deceased.
A range of possible outcomes can be discussed enabling LPRS to make an informed decision as to whether to negotiate a settlement or defend it in Court.
Defending the claim
If a claim proceeds to Court, LPRS must adduce all evidence relevant to the claim and any genuine and relevant evidence required by a beneficiary to be put to the Court. To avoid exposure to personal liability, LPRS should not distribute any part of the estate unless extenuating circumstances apply, there is agreement between the parties or authority from the Court.
On becoming aware of a claim, LPRS must provide other potential claimants with notice, allowing those persons an opportunity to also make a claim which can be heard in the one Court proceeding.
LPRS must also file an affidavit setting out the nature and value of assets and liabilities of the estate and the net amount available for distribution after allowing for liabilities and estate expenses, including legal costs of the Court proceeding.
Claims for provision can be settled at any stage prior to a trial before a Court. Mediation is generally ordered by the Court, which can assist in resolving the claim without further legal costs.