Family Provision Claim Time Limits
When a person dies leaving a will that does not adequately provide for one or more of their family members, the will may be contested. This is known as a family provision claim. Each state and territory of Australia has different eligibility criteria that determine who may make a family provision claim. There is also a strict time limit for making such a claim in each jurisdiction. This page deals with the time limits for making family provision claims in the different states and territories of Australia.
In Queensland, a person wanting to contest a will must notify the executor of their intention within six months of the testator’s death so that the executor does not distribute the estate before the claim has been heard.
If a claimant notifies an executor of a claim after more than six months has passed and the estate has not yet been distributed, the executor is still required to suspend administration of the estate.
In Queensland, a Family Provision Application must be lodged with the Supreme Court within nine months of the testator’s death. The court will allow a late application only if there is sufficient reason.
New South Wales
It is important to note that in New South Wales, an executor may distribute an estate six months after the death of the testator and once this has occurred, it will be much harder to recoup assets.
In Victoria, a Testator Family Maintenance (TFM) claim must be filed within six months of the date probate was granted. A claim may be made after this with the approval of the Supreme Court but the claimant must show that the estate would not be prejudiced by the claim being made late.
Australian Capital Territory
In the ACT, a family provision claim must be filed with the Supreme Court within six months of the date that probate was granted. The court has the discretion to extend this time limit but cannot allow an application after the estate has been distributed.
In Western Australia, a claimant has six months from the date of probate to file a family provision claim with the Supreme Court. The court will only hear a late claim if justice would only be served by giving leave to the claimant to file outside the time limit. Where an out of time claim is made in WA, the Supreme Court can order that assets that have already been distributed be retrieved from beneficiaries in some circumstances.
In the Northern Territory, a family provision claim must be filed in the Supreme Court within a year of the date of the Grant of Probate. If there are exceptional circumstances, the court may agree to hear a claim that is filed after this deadline. However, the court cannot hear a claim after an estate has been distributed.
In South Australia, a family provision claim must be filed within six months of the date probate was granted. The court may grant an extension of time to file a claim under section 8 of the Inheritance (Family Provision) Act 1972 if it sees fit; however this may not occur after final distribution of the estate has been made.
In Tasmania, a family provision claim must be made within three months of the grant of probate. A claimant may file after the three months have passed if the court gives them permission to do so. Before permitting an out of time claim to be made, the court will consider the persons likely to be affected. It will only allow an out-of-time application to be made if the estate has not been fully distributed.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.