Will Challenges: can the executor be personally sued?

Written by Terry Johansson | 13th September 2013

It is becoming increasingly common for people to challenge a Will, claiming that in some way they have not been properly provided for in the Will, or that it is unfair in some other way.

These claims are called ‘claims for further provision’ or ‘Family Provision’ claims.

Anyone who wishes to make a Family Provision claim must do so within a certain period of time. This is usually between six (6) months or nine (9) months from the date Probate is granted, in various States, or within 12 months of the date of death in NSW.

If the executor distributes the estate within that time limit, he/she may be held personally liable if he/she has not properly taken into account the possibility of a family provision claim. The executor may be able to protect themselves by ensuring that his / her intention to apply for Probate has been advertised as stated above.

It is possible for a family provision claim to be made after the expiration of the time limit with the leave of the court. In this situation, so long as the executor was without knowledge of the potential claim, he/she will be protected from any personal liability for any distribution of the Estate after the time limit has passed.

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