Notifying a claim under the Family Protection Act
It is important to notify a claim under the Family Protection Act to the executors of the estate within certain timeframes. If this is not done within the required timeframes, then it can be very difficult to bring any claim at all. In particular, it is important that claims are notified before the estate itself is distributed. If the estate has been distributed then it will be necessary to bring separate following order proceedings to claw back any distribution into the estate.
The notice of your claim, which should be in writing, should be delivered to the executors within six months of the date that probate is granted and, where there has been no undertaking not to distribute the estate pending the outcome, within three months of the date probate is granted. Once notice is granted, the proceedings should be filed within three months. This notice should ideally be prepared by a lawyer.
Generally, an executor will provide a copy of the will to all beneficiaries and to any potential claimants upon request but, where animosity runs deep, potential claimants are sometimes not provided with a copy of the will. It is possible to publicly search the will once it is probated by approaching the High Court and asking for a copy. This however does take some time and it is preferable if executors provide a copy.
Executors must also provide copies of any earlier wills or will instructions as well as a statement of assets and liabilities for the estate.
Many claims under the Family Protection Act will settle either at a settlement conference or mediation. See my articles on Mediation.
The foregoing advice is generic and my advice on your individual situation will differ depending on the facts. In my experience, no one situation is exactly the same and every scenario needs to be individually considered.
