Wills and estates: October 2014

Notices of Distribution

In response to a recent practitioner’s query, I take the view that publication of a Notice of Distribution on the Supreme Court Online site protects the executors as executors in their personal capacity from any subsequent claim by family provision applicants. If the executor is also a beneficiary and the Succession Act family provision claim is commenced within 12 months of the death of the deceased it does not protect the executor/beneficiary from a claim designating the distributed estate in the executor/beneficiary’s hands as notional estate. If there has been notice of an intended claim, prudent practice suggests that there should be no distribution before 12 months from death.

These views are reinforced by the recent Court of Appeal judgment Phillips v James [2014] NSWCA 4 and the extent that a distributed estate can be traced and will be designated notional estate in circumstances where executor/beneficiaries sold houses transferred to them within 12 months from the date of death and bought replacement houses.