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Extension of Time Limit (NSW)

In New South Wales, an eligible person can only make a Family Provision Claim against a deceased estate in the twelve months following the testator’s death. This is the longest limitation period for contesting a will in Australia, but there are reasons why a claimant may fail to file inside this time period. In that circumstance, a claimant does have a narrow avenue to apply outside the time limit if they can prove that there is sufficient justification for the delay. This article outlines the circumstances that might compel the Supreme Court to grant an extension of the time limit for a person to contest a will with reference to a recent judgment.

What Is A Family Provision Claim?

The Succession Act 2006 stipulates that an eligible person (close family member or dependent) can contest a will if he or she feels that the deceased failed to make adequate testamentary arrangements for their welfare. This may apply if the testator failed to mention them in the will, or even if they did leave them a bequest, but the gift was tokenistic or insufficient. The court will judge each claim on the merits, given the claimant’s financial need, the type of relationship between the claimant and the deceased, the overall value of the estate and whether another claimant or beneficiary has a stronger claim to provision. The onus is then on the claimant to prove that the deceased had a responsibility to provide and failed to make adequate provision for their welfare.

Time Limit To Contest A Will In NSW

There are several important dates that a claimant should keep in mind when they plan to contest a will in NSW. Section 58(2) of the Succession Act establishes that the official deadline for filing a claim with the court is twelve months of the date of death, but there is also an earlier date that will impact on the claim. The executor of the estate is free to distribute the assets of the estate after six months, so it will be much harder to recoup assets after this point.

The NSW Supreme Court has established some relevant legal principles when it comes to granting an extension of time limit to make a claim. In cases such as Thomas v Pickering; Byrne v Pickering [2011], the court has stated that:

  1. The time limit that applies to making a claim is not a mere formality (confirmed in Verzar v Verzar [2012]);
  2. The court has full discretionary power to grant an extension of the time limit;
  3. The onus is on the claimant to establish sufficient cause for an extension;
  4. Beyond this, there are no statutory criteria or rigid rules that apply to granting an extension;
  5. The court will assess the length of time and reasons for the delay;
  6. The court will look at other factors, including whether any beneficiary would be unacceptably prejudiced if there is an extension of time limit (rather than if the claim is successful);
  7. It is relevant if either party has displayed unconscionable conduct (in deliberately delaying proceedings in order to make the beneficiaries think they have security); and
  8. The overall strength of the claim (it is only necessary for a claimant to demonstrate that the application is not likely to fail De Winter v Johnstone [1995]).

A claimant is likely to be successful in gaining an extension if the delay was not excessive, the estate has not yet been distributed, and the applicant was unaware of the right to claim or the time limit and moved promptly to apply for an extension once they were aware.

Recent Case Studies

The court denied a claimant’s application for an extension of the time limit in Wise v Barry [2018]. The court found that the applicant had seven years after the death of the testator to bring a claim, and as he consulted solicitors on several occasions, he was fully aware of his legal rights. It was the court’s contention that the applicant had deliberately chosen not to bring a court proceeding because it would have brought to light the fact that he was continuing to reside in the testator’s home without permission. Moreover, the court stated that the applicant did not have a claim against the estate, so there was no cause to grant an extension of time limit.

In Purnell v Tindale [2020] the claimant became aware of the testator’s death in the month she died, August 2016, although he was not informed of the details of his inheritance until February 2017. He sought legal advice several months later in July, justifying the delay by explaining that grief over the testator’s death, and disappointment at not being able to say goodbye had exacerbated his struggle with depression. This had a serious effect on his emotional and physical health, as his isolation at home led to infected bed bites and admittance to hospital from the end of 2016 to the beginning months of 2017.

According to the claimant, his solicitor advised him that he may have a claim against the estate, but did not inform him that there are attendant time limits to contest the will. The claimant also claimed that he was unable to pay the solicitor’s upfront fees as his legal aid application was denied. He contacted another law firm in early 2018 and was informed that the matter was too complicated, but they too failed to tell him there was a deadline to file a claim. Finally, in June 2018, the claimant sought legal advice from his current solicitors who informed him that he was out of time to make a claim but followed his instructions to file an out of time application.

The defence contended that the claimant has not established sufficient cause for an extension of the time limit. They asserted that the claimant understood the terms of the will in February 2017 when he decided not to make a claim and that, as the distribution of the estate was complete, it would prejudice the estate to discharge any claim against the estate.

The court found that the plaintiff had, in fact, adequately explained the delay, particularly as six months of the delay can be attributed to his ignorance of the terms of the will. Also, the court was convinced of the plaintiff’s evidence as to his health issues, his ignorance of time limits, and the fact that the financial circumstances prevented him from prosecuting his claim in a timely fashion. The court decided to grant the extension but ultimately found that the plaintiff was not entitled to relief.

There are several lessons that a claimant can learn from this case. Firstly, it is vital that a claimant file before the deadline to avoid unnecessary litigation in an effort to receive an extension of the time limit. Secondly, a claimant should be sure that they have a strong case for provision, as even if the court does grant leave for an out of time application, that is no guarantee that the claim itself will be successful. The contested wills team at Armstrong Legal can advise you of your chances of success given your particular circumstances. Please contact our team today to avoid delay, or call 1300 038 223 for any of your legal needs.

Dr Nicola Bowes

This article was written by Dr Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first class honours from the University of Tasmania, a Bachelor of Laws with first class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade working in higher education, Nicola joined Armstrong Legal in 2020.

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