Time Limits To Contest A Will (ACT)
There are statutory time limits to contest a will in the Australian Capital Territory. As such, it is essential that a prospective claimant act without delay to file a claim with the Supreme Court of the ACT. This article outlines the deadlines that apply to making a claim against a deceased estate in the ACT, explains the limited exception for late applications, and illustrates these principles through a case study.
What Does It Mean To Contest A Will?
In the ACT, an eligible claimant has a legal right to dispute a will if they were morally entitled to inherit and the testator failed to make such provisions in the will. In that case, the applicant files a Family Provision Claim in the ACT Supreme Court in the hope that their claim will be found valid and the deceased estate will be redistributed to allow for the claimant to receive a share of the estate (or a greater share than was stipulated in the will).
Who Can Contest A Will In The ACT?
Only those who have a statutory right to claim against a deceased estate are eligible to contest a will. In the ACT, only some family members are able to contest a will, including those who have an unconditional right: the current or former de facto partner or marital spouse of the deceased, or their child; and those who have a conditional entitlement: a grandchild, stepchild or parent of the deceased.
Time Limits To Contest A Will In The ACT
A claimant should notify the executor of the estate as soon as possible that they intend to dispute the will, as this halts any distribution of the estate’s assets and provides an opportunity for negotiation between the claimant and the executor before a court hearing.
A prospective claimant should be aware that deadlines vary depending on the jurisdiction in Australia. In the ACT, the Family Provision Act 1969 stipulates that the time limit to contest a will is six months from the date that probate was granted. The only actions that meet the threshold of a commencing action are the filing of a notice of motion or other document that institutes the application.
Extensions Of Time Limits To Contest A Will
The court has discretionary authority under section 9 of the Family Provision Act 1969 to extend the time limit for a claim. There is no provision under the Act for an application after the estate has been fully and lawfully distributed.
The court has unfettered discretion to order an extension, but it must use this power judicially. For example, it will only allow the extension if the claimant has a sufficient explanation for the delay, the claimant’s case is strong and the extension will not unduly prejudice the other beneficiaries. The onus is on the plaintiff to prove these factors in order to extend the time limit to contest a will.
The issue of time limits to contest a will in the ACT was examined in a recent Supreme Court case. In the case of Talent v Talent (2020), a son made a Family Provision Claim against his mother’s estate after he was excluded from her will. There was no dispute over whether the son was an eligible person, and the executor admitted that provision should be made for the claimant given his financial circumstances.
The claimant commenced proceedings six months and two weeks after the grant of probate and was therefore outside the time limit. The plaintiff, in this case, was required to prove to the court that it would be unjust for him to penalised for bringing a late application. The court considered the application in light of the established criteria. The plaintiff did not present the court with any justification for the delay: in fact, the court noted that the plaintiff’s legal representative seemed unaware of the significance of the time limit. However, the plaintiff did have a strong case for redistribution in his favour and his sister (the executor and major beneficiary) was not unduly inconvenienced by the delay, even though the estate was partially distributed before his claim was made. The court ultimately ruled that given these factors, they would use their discretion to extend the time limit to contest the will. This case demonstrates that an extension may be granted if the delay is minimal and the other criteria support a judgment in favour of the plaintiff.
In many cases, the court will not make such a favourable decision when a Family Provision Claim is made after the time limit. The court may make allowance for an application after that time, but there is no guarantee and a deserving claimant might miss out on a technicality. It is essential that a claimant consult a solicitor who has experience with such claims and can help you make an on-time application. Please telephone our Contested Wills Team on 1300 038 223 without delay to discuss your claim or make an appointment to talk about your legal needs.