By Charlotte Schaefer -
Snapshot
- Do legal practitioners owe a duty to missed beneficiaries or entitled persons overlooked on intestacy?
- What options are available for practitioners in such cases and what level of effort is required on the part of executors/administrators to search for missing beneficiaries and persons entitled on intestacy?
- Practitioners must rely on extensive research and independent official records, not merely client hearsay.
Does a practitioner owe a duty to an actual or potential beneficiary? The recent cases of Maestrale v Aspite [2012] NSWSC 1420 and Fischer v Howe [2014] NSWCA 286 explore this possibility, posing a diversion from the usual flow of duties as they exist from the practitioner to their executor/administrator client and from the executor/administrator to the beneficiaries of an estate.
So what happens when a beneficiary, or beneficiaries, cannot be located or may be deceased? Where are they? Are they still known by the same name? Are they still alive? Did they pre-decease the testator? And what happens when the identity of beneficiaries needs to be established with reference to a ‘class of beneficiaries’ nominated in a will or by operation of the application of intestacy provisions? Who are they? Where are they? Are they still alive? Did they pre-decease the testator?
To answer these questions, the practitioner must rely on independent official records, not merely client hearsay.
