Deceased Estates & Family Provision Act

 

One of our special areas of interest is in deceased estates both contested and uncontested: from the simple transmission of the family home to contentious applications in the Supreme Court involving the formal validity of wills and claims under the Family Provision Act .

PROBATE


Probate is the name given to the formal Supreme Court approval that a will is valid and the person appointed as Executor is entitled to transfer the assets of the deceased to the beneficiaries named in the Will. For practical purposes the application for Probate is made by your solicitor with information supplied by the executor. The application for Probate is drawn up after details of all the deceased's assets and debts are available, and notice of the application is published in a newspaper circulating in the area where the deceased lived.

The Executor appointed by a will has a duty to carry out its terms in a timely manner: this means that there should not be undue delay in applying for probate and then administration of the estate.

Most applications for probate are uncontested unless there is evidence that a Will was signed by a testator who lacked capacity or who was under duress or undue influence, or that a later Will was made.

Contesting the validity of a Will is different to an application to vary its terms under the Family Provision Act, 1987 .


LETTERS OF ADMINISTRATION

Letters of Administration is the name given to the Supreme Court approval that a particular person can administer a deceased estate where either there is no will (called “intestacy”) or the executor named in a will is deceased or unable or unwilling to apply for Probate.

Where a person dies without a will, the laws of intestacy apply. The Wills Probate & Administration Act states who will inherit a deceased's assets: usually the next-of-kin i.e. Spouse (or de facto), children, parents, siblings, nieces and nephews.

The law relating to succession on intestacy can be quite complex depending on the nature of the deceased's relationships and you should obtain expert legal advice if a loved one dies without a will.


FAMILY PROVISION ACT CLAIMS

The Family Provision Act is a law which states that a person entitled may make an application to the Supreme Court to vary the terms of a Will or the distribution of an intestate estate, where that person can show a need.

A person entitled includes the spouse (or de facto or ex-spouse), children or dependent grandchildren or any person who was a member of the deceased's household at any time and was dependent on the deceased.

This area of the law is quite complex, as the definitions of dependency and need vary widely in the particular circumstances of each case.

Applications under the Family Provision Act should be made within 18 months of the date of death of the testator.