New South Wales Consolidated Acts

PROBATE AND ADMINISTRATION ACT 1898 - SECT 93

93 Claims barred against executor or administrator in certain cases

(1) When the executor or administrator of the estate of a testator or an intestate has published the notices referred to in section 92 (1) and a claim in respect of the assets of that estate is submitted to the executor or administrator, the executor or administrator may, if the executor or administrator disputes the claim, serve on the person by whom or on whose behalf the claim was submitted a notice calling on the person to take proceedings to enforce the person's claim within a period of 3 months from the date of service of the notice and to prosecute the person's claim.

(2) If, after a notice has been served on a person in accordance with subsection (1) and the period of 3 months referred to in the notice has expired, that person does not satisfy the Court that the person is prosecuting the person's claim, the Court may, on an application in that behalf made by the executor or administrator--

(a) make an order barring the claim of that person as against the executor or administrator, subject to such conditions (if any) as it thinks just and equitable, or

(b) make such other order in respect of the application as it thinks just and equitable, having regard to the circumstances of the case.

(3) Where--

(a) in its capacity as executor or administrator, the NSW Trustee or a trustee company--

(i) disputes any claim upon an estate (whether the claimant claims to be a creditor or to have a beneficial interest in the estate), and

(ii) has served on the claimant a notice in accordance with subsection (1), and

(b) the claimant has not, within the period of 3 months referred to in the notice served in accordance with subsection (1), commenced proceedings to enforce the claim,

the NSW Trustee or the trustee company may serve a further notice on the claimant that unless, within the period of 2 months from the date of service of that further notice, the NSW Trustee or the trustee company is duly served with process of court issued in proceedings to enforce the claim, the NSW Trustee or the trustee company will distribute the estate without regard to the claim.

(4) If, within the period of 2 months referred to in a notice served on a claimant in accordance with subsection (3), the NSW Trustee or a trustee company has not been duly served with process as referred to in that subsection, the claimant's claim shall thereupon be barred and become irrecoverable as against the NSW Trustee or the trustee company and the NSW Trustee or the trustee company may proceed to distribute the estate without regard to the claim.

(5) The NSW Trustee or a trustee company may, if it thinks fit, waive any objection which it might, by virtue of subsection (4), take to proceedings commenced by a claimant after the expiration of the period of 2 months referred to in a notice served on the claimant in accordance with subsection (3).

(6) The powers conferred on the NSW Trustee or a trustee company by subsections (3) and (4) are in addition to the powers exercisable under subsection (2).