Estate administration can be a challenging process, especially when it involves resolving family provision claims. This article summarises a recent case and outlines the principles regarding the enforcement of family provision orders and the obligations of solicitors involved in such matters.

Summary of the Case

In a recent judgment, His Honour addressed the complexities involved in administering the estate of Fritz Gerstenmeier, who passed away on 14 February 2022. The case involved a family provision claim brought by one of Gerstenmeier’s sons (‘Michael’), against the estate managed by the executor, his brother. The court had previously ordered a lump sum legacy of $210,000 to be paid to Michael, with a 60-day payment period before interest would accrue.

However, the executor failed to make the payment within the stipulated time, leading to a series of court appearances to address the delay. The executor’s solicitors cited refinancing issues as the cause of the delay. The plaintiff sought orders appointing trustees for the sale of estate property to enforce the payment. Submissions were made by each of the parties’ representatives, but no evidence was put before the Court of the alleged delay with Westpac and St George. Ultimately, the situation was resolved by the payment being made at the eleventh-hour, and those orders were not necessary.

Principles for Enforcement of Family Provision Orders

1. Court’s Power to Enforce Orders: The court has the authority to make orders dealing with specific property to enable the enforcement of a legacy. This includes appointing trustees for sale, vesting property, and ordering the sale of property to satisfy the family provision order.
2. Obligations of Executors: Executors must ensure timely compliance with court orders. They should maintain transparent communication with beneficiaries and seek necessary information from financial institutions to avoid delays.
3. Evidence and Communication: Executors must provide direct and clear evidence of communications with banks or financial institutions. This includes documenting reasons for any delays and outlining steps taken to resolve issues.
4. Funding an Estate: In cases where estate assets are insufficient to meet legacy payments, executors or other beneficiaries may arrange alternative funding. However, any such arrangement must comply with court orders and estate laws, as well as the provisions of the will.
5. Compliance with Payment Directions: Solicitors receiving payment directions from other solicitors must comply unless there is a legitimate reason not to. Failing to do so can result in professional conduct issues.

Obligations of Solicitors

1. Evidence: Solicitors must ensure that their submissions to the court are supported by proper evidence. They should avoid making unsupported claims and seek adjournments, if necessary, to gather relevant evidence.
2. Transparency and Communication: Clear and honest communication between solicitors and their clients, as well as with opposing parties, is crucial. This ensures that all parties are adequately informed and can act accordingly.
3. Professional Conduct: Solicitors must uphold high standards of professional conduct, particularly in complying with court directions and payment orders. This maintains the integrity of the legal process and fosters trust among parties.

Conclusion

This case highlights the importance of clear communication, timely compliance with court orders, and the critical role of evidence in support of submissions made to the Court. Executors and solicitors must work diligently to ensure that family provision orders are effected effectively, maintaining transparency and professionalism throughout the process.

DISCLAIMER

This article reflects the current law at the time of publication. It is intended for informational purposes only and does not constitute legal advice. The actual decisions in each case are summarised for general understanding. For specific legal guidance in relation to your situation, please consult with a qualified legal professional.