claims under s 93 , following service of notice under s 92 of the Wills Probate
Applicable principles
Quick Take
1Under s 93(2) of the Probate and Administration Act 1898 (NSW), where an administrator has published a s 92 notice, served a s 93(1) notice on a claimant, and the claimant has failed to commence or prosecute proceedings within three months, the court has jurisdiction to bar the claim; the court is not required to undertake a substantive assessment of the merits but may take apparent merit into account.
2A 'claim' for the purposes of ss 92 and 93 is given a wide meaning, encompassing any assertion of a right or alleged right, and need not be formal; an administrator who has notice of such a claim cannot safely distribute without either satisfying the claim or obtaining a barring order.
3The judgment sets out a detailed checklist of matters that should be addressed in the supporting affidavit on a s 93(2) application, including the grant, publication of the s 92 notice, the claim and its dispute, service of the s 93(1) notice, advice to the claimant of the barring application, whether the claimant had legal assistance, and any explanation for failure to commence proceedings.
Case Details
Citation[2022] NSWSC 268
CourtNSWSC
JurisdictionNew South Wales
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