Where a personal representative distributes a part or the whole of the deceased’s estate before a family provision application is made, it is necessary to provide for the protection of the personal representative and of the beneficiary to whom the distribution has been made. The States and Territories all address one or both of these matters, but in different ways.

9.1 AUSTRALIAN CAPITAL TERRITORY

Protection of distributions

Section 20 of the Family Provision Act 1969 (ACT) provides:

(1) Subject to subsection (2), notwithstanding any distribution of property forming part of the estate of a deceased person made by the administrator of the estate, the Court may, in an order under section 8 or 9A in relation to that estate, direct that provision be made for a person out of that property.

(2) In an order under section 8 or 9A, the Court shall not direct that provision be made for a person out of any property that has been the subject of a distribution referred to in subsection (1) if -

(a) the distribution was properly made for the purpose of providing for the proper maintenance, education or advancement in life of a person who was totally or partially dependent on the deceased person immediately before the death of the deceased person; or

(b) the distribution was made -

(i) more than 12 months after the date on which administration of the estate was granted; and
(ii) before the administrator had notice of the application for the order or, where an application was made under section 9 for an extension of time within which an application for an order under section 8 may be made, the application under section 9,

and the property that was so distributed has vested in possession of any person.

Protection of Administrator

Section 21 provides:

An action does not lie against the administrator of the estate of a deceased person by reason of his having distributed the whole or any part of the estate of the deceased person if the distribution was a distribution referred to in subsection 20(2) or if -

(a) the distribution was made before the administrator had notice of an application for an order under this Act or notice of an application to extend the time within which such an application may be made under this Act; and

(b) before making the distribution, the administrator had given notices in accordance with section 64 of the Administration and Probate Act 1929 and the time specified in the notice or in the last of the notices for sending in claims has expired.

Section 64 of the Administration and Probate Act 1929 (ACT) provides that an administrator may distribute the assets of an estate after the expiration of a time given by published notices inviting persons having claims against the estate to notify the administrator of them.

9.2 NEW SOUTH WALES

Protection of Administrator

In New South Wales administrators are protected by notices of distributions. Section 35 of the Family Provision Act 1982 (NSW) provides:

(1) Where the administrator of the estate of a deceased person has given notices in the manner and form prescribed by rules of court of his intention to distribute the property in the estate after the expiration of a specified time, he may, at the expiration of the time specified in the notices or, as the case may require, in the last of the notices, distribute that property having regard only to the applications in relation to the deceased person of which he has notice at the time of the distribution.

(2) An administrator who distributes property in the estate of a deceased person in accordance with subsection (1) is not liable in respect of that property to any person of whose application in relation to the deceased person he did not have notice at the time of the distribution.

9.3 NORTHERN TERRITORY

Protection of distributions

Section 20 of the Family Provision Act 1970 (NT) provides:

(1) Notwithstanding any distribution of the property of the deceased person made by the administrator of the estate of the deceased person before the administrator had notice of an application for an order under section 8 made within 12 months after the date on which administration was granted, the Court may, subject to sub-section (2), order that provision be made under this Act out of any property of the deceased person that has been so distributed.

(2) The Court shall not make an order under sub-section (1) if the making of that order would affect or disturb a distribution that was a proper distribution made for the purpose of providing for the maintenance, education or advancement in life of a person who was totally or partially dependent on the deceased person immediately before his death.

Protection of Administrator

Section 21 provides:

An action does not lie against the administrator of the estate of a deceased person by reason of his having distributed the whole or any part of the estate of the deceased person if the distribution was a distribution referred to in sub-section (2) of section 20 or if -

(a) the distribution was made before the administrator had notice of an application for an order under this Act or notice of an application to extend the time within which such an application may be made under this Act; and

(b) before making the distribution, the administrator had given notices in accordance with section 96 of the Administration and Probate Act and the time specified in the notices or the last of the notices for sending in claims had expired.

9.4 QUEENSLAND AND VICTORIA

The Queensland and Victoria family provision legislation conflates in one section protection to personal representatives who distribute, and to distributions to beneficiaries. The Queensland provision differs from the Victorian provision only in that in Queensland a limitation period is expressed to be by reference to the death of the deceased, whereas in Victoria it is expressed to be by reference to the date of a grant.

Protection of personal representative and distributions

Section 44 of the Succession Act 1981 (Qld) is virtually identical to section 99A of the Administration and Probate Act 1958 (Vic) and both are lengthy. Section 44 provides:

(1) No action shall lie against the personal representative by reason of the personal representative having distributed any part of the estate and no application or order under this Part shall disturb the distribution, if it was properly made by the personal representative for the purpose of providing for the maintenance or support of the wife, husband or any child of the deceased person totally or partially dependent on the deceased person immediately before the death of the deceased person whether or not the personal representative had notice at the time of the distribution of any application or intended application under this Part in respect of the estate.

(2) No person who may have made or may be entitled to make an application under this Part shall be entitled to bring an action against the personal representative by reason of the personal representative having distributed any part of the estate if the distribution was properly made by the personal representative after the person (being of full legal capacity) has notified the personal representative in writing that the person either -

(a) consents to the distribution; or

(b) does not intend to make any application that would affect the proposed distribution.

(3) No action shall lie against the personal representative by reason of the personal representative having distributed any part of the estate if the distribution was properly made by the personal representative after the expiration of 6 months from the death of the deceased [in Victoria six months after the date of the grant of probate of the will or letters of administration (as the case may be)] and without notice of any application or intended application under section 41(1) or 42 in respect of the estate.

(4) For the purposes of this section notice to a personal representative of intention to make any application under this Part shall be in writing signed by the applicant or the applicant’s solicitor and shall lapse and be incapable of being renewed, and the personal representative may act as if the personal representative had not received the notice, unless, before the expiration of 3 months after the day on which the personal representative first receives notice of intention to make the application, the personal representative receives notice in writing that the application has been made to the Court or is served with a copy of the application.

(5) However, nothing in subsection (4) shall prevent the subsequent making of an application within any other period allowed by or pursuant to this Part.

9.5 SOUTH AUSTRALIA

Protection of Administrator

Section 14 of the Inheritance (Family Provision) Act 1972 (SA) provides:

(1) An administrator of the estate of a deceased person who has lawfully distributed the estate or any part thereof shall not be liable to account for that estate or that part thereof, as the case may be, to any person claiming the benefit of this Act, unless the administrator had notice of the claim at the time of the distribution.

(2) For the purposes of this section, notice of the claim -

(a) shall be in writing signed by the claimant or his solicitor; and

(b) shall lapse and be incapable of being renewed unless, before the expiration of three months after the administrator receives notice of the claim a copy of an application by the claimant for the benefit of this Act has been served on him.

(3) Subsection (1) of this section shall not prevent the Court from ordering that any provision under this Act be made out of the estate, or any part thereof, after it has been distributed.

9.6 TASMANIA

Protection of distributions

Tasmania does not provide specifically for the protection of administrators; and it has only a brief reference to the protection of distributions. Section 11(4) of the Testator’s Family Maintenance Act 1912 (Tas) provides:

(4) An application under subsection (2) of this section shall be made before the final distribution of the estate of the deceased person, and no distribution of any part of the estate made before the making of an application under that subsection shall be disturbed by reason of that application or of any order made thereon or in consequence thereof.

9.7 WESTERN AUSTRALIA

Protection of Administrator

Western Australia has a different, but lengthy provision. Section 20 of the Inheritance (Family and Dependants Provision) Act 1972 (WA) which is entitled Power of administrator to distribute provides:

(1) No action shall lie against the Administrator by reason of his having distributed any part of the estate, if the distribution was properly made without notice of any application or intended application under this Act in respect of the estate.

(2) For the purposes of the administration or distribution of any estate or any property no executor or administrator or trustee shall be under any obligation to inquire as to the existence of any person who could claim an interest in the estate or the property by virtue only of the provisions of this Act.

(3) No action by any person whose relationship to the deceased is not determined through lawful wedlock or adoption shall lie against the Administrator, or any trustee appointed pursuant to this Act, by reason of his having prejudiced any claim of that person under this Act by distributing any part of any estate, or any property, if the distribution was made without notice of any application or intended application by that person under this Act in respect of that estate or property.

(4) A person who makes or is entitled to make an application under this Act and who, being of full legal capacity, advises the Administrator in writing that he -

(a) consents to a proposed distribution; or


(b) does not intend to make any application under this Act that would affect a proposed distribution,



shall not bring an action against the Administrator by reason of his having thereafter distributed any part of the estate.

(5) Notice to an Administrator of an intended application shall lapse and shall be incapable of being renewed, and the Administrator may act as if he had not received the notice, if, before the expiration of three months after the date on which he first receives notice of the intention to make the application or before the sooner expiration of twelve months from the date on which the Administrator became entitled to administer the estate of the deceased in Western Australia, the Administrator does not receive notice that the application has been made to the Court; but nothing in this subsection shall prevent the subsequent making of the application.

9.8 ISSUES FOR CONSIDERATION

There are some differences of substance between the quoted provisions; but the main differences between them are of drafting. The differences of substance include the following.

(1) In all States and Territories except Queensland the protection given is dependent upon the expiration of a limitation period which is expressed to be by reference to the grant of probate or letters of administration. In Queensland the period is expressed by reference to the date of death.¹

(2) Protection is given to distributions made to dependents of the deceased in some States and Territories but not all.

(3) Queensland has not provided, as other States and Territories do, that the Court may make an order against a distributed estate or property. That seems to be left to implication.

(4) Only in Western Australia is it provided, by section 20(2), that an executor or administrator is not under an obligation to inquire as to the existence of possible applicants.

(5) In Western Australia there is a limitation in section 20(3) which may adversely affect persons whose relationship with the deceased is not determined by lawful wedlock or adoption.

(6) There is the general question of whether these provisions could not be greatly simplified by a general limitation period with which applicants must comply. There is potential inconsistency between the desire to ensure that the estate, and all applications made in respect of it under this legislation, should be distributed, and all issues settled, within a convenient period of time; and the desire to enable applicants who may not be aware of their entitlement, to make a late application. Although the legislation attempts to bridge this gap, it may well be that very careful consideration of its implications could result in much simpler legislation.