Types of estate claim
There are a number of estate claims that can be brought against the estate, including:
- a family provision application under the relevant State legislation, which occurs when an eligible person (as defined in each State but which includes, for example, a spouse or children of the deceased person) brings an action to receive something from a deceased person’s estate in circumstances where they received nothing under the terms of the Will, or feel the provision made for them was inadequate; or
- an action to dispute the validity of a Will, for example where the deceased person’s capacity at the time they signed their Will may be in question; or
- an action that already existed before the person died that has not been resolved.
It is therefore important to obtain legal advice from an expert in estate administration to properly defend an estate claim.
What are the Executor’s responsibilities?
One of an executor’s responsibilities is to defend any attacks against the estate and the executor also stands in the shoes of the deceased person in certain legal actions already on foot when the person died.
Executors need to be aware of their responsibilities to the estate and their options when acting as executor where an estate claim is made. Where an executor wants to bring a claim themselves, independent legal advice and guidance is essential.
Getting the right advice
Estate First Lawyers specialise in advising clients on defending estate challenges and we strongly recommend to executors that they obtain legal advice and guidance regarding the important considerations in administering an estate where there is the potential for an estate claim. Executors who don’t defend the estate’s interests strongly enough, or who defend over zealously, risk personal liability for the financial costs to the estate. Many of the issues executor’s face could have been avoided by skilful planning by the Willmaker when they created their estate plan in the first place. There are a number of strategies in estate planning to minimise the risk of an estate attack.
Frequently Asked Questions
How can a Will be attacked?
A Will can be ‘attacked’, broadly speaking in two main ways:
- against the validity of the Will itself, because the Will maker did not understand or have the capacity (testamentary capacity) to make their Will at the time the Will was written; or
- to ask for more provision from the estate, where an eligible person feels they should receive some or more provision from a deceased’s person’s estate.
Why is it important to consider estate claims?
An executor of an estate is the person who legally must defend any claim made against the estate of a deceased person. This may include actions already brought against the person before they died. There are time frames within which some claims can be brought, and an executor can be personally liable if they distribute an estate before those timeframes have passed, so it is important to be aware of the timeframes applicable for the estate you are administering and delay distribution pending any potential claims. These timeframes differ from State to State, so contact Estate First if you need advice regarding a particular estate. You can read more about the way Estate First can provide you with advice to minimise the risk of acting as an executor here.
How will I know if an estate is being attacked?
There are notice requirements and a legal process to follow for an estate claim to occur. If you are the executor, then the person making the claim must inform you of that claim, so you will be made aware before any steps need to be taken. If, as an executor or administrator, you are served with any legal paperwork, you should contact Estate First Lawyers to provide you with guidance and assistance in this regard.
Who is eligible to bring an estate claim?
Who can bring a family provision application varies from State to State and depends where the deceased person was domiciled (lived or had their primary residence) when they died, and also, where they held assets at the date of their death. If you want more information on whether an estate you are administering is at risk, then you should contact Estate First Lawyers.
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