Time Limits To Contest A Will in Australia
Someone can only contest a will in Australia within set time frames. It can be confusing to know the time limit, however, as the statutory deadlines vary depending on where the deceased estate is located. To further complicate the matter, some jurisdictions count from the date of the testator’s death, and some from the date that probate was granted. The most important time limit when disputing a will relates to the deadline to file a claim with the relevant Supreme Court. This article lists the time limits to contest a will in each state and territory in Australia and explains how a claimant might have adequate justification for an out-of-time claim.
What Does It Mean To Contest A Will?
A claimant who is unfairly treated by a deceased’s testamentary provisions can contest a will through an application to the Supreme Court for adequate provision from the deceased estate. Before filing with the Court a claimant needs to notify the executor of the estate in writing that they intend to contest a will.
The different time limits for a claimant to contest a will are listed below:
Time Limits To Contest A Will in Queensland
In Queensland, a claimant must notify an executor in writing within six months of the date of the testator’s death that they are going to contest a will. The claimant can give notification to the executor after the six months deadline, and if the estate has not already been distributed, then the executor is obligated to cease distribution until the claim is addressed.
The Succession Act 1981 stipulates that a Family Provision Claim must be filed within nine months of the deceased’s death. The Court will only hear an out-of-time application if the applicant makes a compelling case to be heard. The court will give regard to the length of the delay, whether the estate has already been distributed and whether the applicant has a legitimate excuse for the delay. The court will also hear objections to the late application from the executor and beneficiaries.
In accordance with the Administration and Probate Act 1958, a claimant only has six months from the date of probate grant to contest a will in Victoria. Any claim filed after this deadline must have the approval of the court. The court will only give this approval if the claimant can prove that a late claim will not prejudice the estate or harm the beneficiaries. A late application will not be heard in this jurisdiction if the assets of the estate have already been distributed.
Time Limits To Contest A Will in New South Wales
The Succession Act 2006 states that a Family Provision Claim must be filed in New South Wales within a year of the date of the testator’s death. If the exact date of death is uncertain, the court is free to determine a “reasonable” date of death. A late application is only permissible if the claimant has sufficient excuse or justification for the delay.
In the Northern Territory, Family Maintenance Proceedings must commence within twelve months of the Probate Grant. The Family Provision Act 1970 makes allowance for a late application only with special leave of the court.
Time Limits To Contest A Will in South Australia
In South Australia, a claimant has six months from the day that the Grant of Probate is issued to make a Family Provision Claim. The Inheritance (Family Provision) Act 1972 allows a claimant in certain circumstances to apply for an extension to the time limit. The court will review the reason for the delay, the length of the delay and any prejudice that will arise to other parties because of the delay. If another party made a claim within time, the court can choose to allow the out-of-time claimant to “join” the existing proceedings. The Supreme Court of South Australia will not disturb a distribution if the beneficiaries have already received their bequests.
In Western Australia, an eligible applicant must make their Family Provision Claim before six months has passed since the Grant of Probate. The Family Provision Act 1972 grants the court the authority to allow late applications if they see fit.
Time Limits To Contest A Will in the ACT
The time limit to contest a will in the Australian Capital Territory is six months from the date of probate. The court can only make an exception under the Family Provision Act 1969 for a late Family Provision Claim if it judges that there is sufficient cause.
Tasmania has a shorter time limit than other jurisdictions in Australia. A Family Provision Claim can only be filed in the three months following the Grant of Probate. The court will consider granting permission for a late application in light of the impact that this delayed claim will have on all parties involved. The court will not hear an out of time application in Tasmania for any part of the estate that has already been distributed.
The contested wills team at Armstrong Legal can advise you on the time limits to contest a will in your jurisdiction. We encourage you to contact our experienced solicitors who can help you decide whether it is worth making an out of time application. Please call 1300 038 223 to discuss any estate, probate or testamentary matters.