It’s extremely important to properly serve family provision claims in South Australia. A failure to serve a claim correctly and within time can have disastrous results for potential beneficiaries.
(See my post on family provision claims if you’re not sure of the difference between a family provision claim and other types of disputes about inheritances.)
- The application must be made within 6 months of the grant of probate or letters of administration for the estate; and,
- For this purpose, an application is only made when the summons for the claim is served on the executor or administrator of the estate.
The Supreme Court can permit an extension of time if the estate hasn’t yet been fully distributed, but any extension of time can only relate to those assets which haven’t yet been distributed. Or in other words, if half of the estate has been distributed already, then you can only claim against the remaining half. (But if it is within time a claim can still be made against assets that have been distributed.)
There is no guarantee that an extension of time will be granted and the court is often less inclined to grant extensions of time for this type of action than other types.
Problems with service
The recent case of Miller v Miller  SASC 37 is an example of how easily things can go wrong. In that case there were already proceedings on foot by the executor against a potential claimant. The claimant’s lawyer then tried to serve the application on the executor’s lawyer before time ran out.
The court rules do allow for the possibly for a claim to be served on someone’s lawyer, but the rules also require that the lawyer issue an acknowledgement that they accept service on behalf of that person. The court found that the executor’s lawyer had authority to accept service but that service was still ineffective because no acknowledgment had been issued by the executor’s lawyer. This meant that by the time the executor was served with the application, it was too late.
Almost all of the disclosed assets of the estate had been distributed before the time limit ran out, so on the face of it there will not be much for the potential claimant to claim against if an extension were to be granted.
A different issue arose in Johns v Johns  SASC 147 where the South Australian claim had to be served interstate. The court made a special order for presumptive service (similar to substituted service) by leaving the summons for the application at the executor’s residence but subject to the claim and order being served in accordance with the Service and Execution of Process Act 1992, which act governs service of claims from one state in another.
Unfortunately, the requirements of that legislation was not complied with because a notice that had to be provided with the claim was missing. The result? Service was ineffective and the claim was also out of time. As with Miller v Miller (above) distributions had already been made, leading to the action being dismissed.
One issue where that can cause confusion is whether an executor can or should distribute where there is a possibility of a claim being made.
The starting position is that an executor can but normally should not distribute within the 6 month time period where there is any possibility or expectation of a claim being made (see Blunden v Blunden & Anor  SASC 286). Sometimes it may even be prudent to avoid selling property if that property may be a particular focus of the claim.
If a distribution is made in such circumstances then the executor may be liable for any resulting loss to the beneficiaries. But section 14 of the Inheritance (Family Provision) Act 1972 provides a defence for executors that covers most circumstances. An executor or administrator can still be liable if the claimant has given notice of the claim when the distribution is made, but these notices must be in writing and cease to be of effect after 3 months.