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Time Limits To Contest A Will (NSW)

It is essential that anyone planning to contest a will in New South Wales is aware of the relevant statutory time limits. A Family Provision Claim must be made in the twelve months following the testator’s death, unless there are persuasive extenuating circumstances. This article highlights the time limits that are relevant to contesting a will, with focus on the justifiable reasons for late application in NSW.

What Is A Family Provision Claim?

An eligible person can contest a will through an application to the Supreme Court of NSW with an instrument called a Family Provision Claim. Someone can file this claim if they feel that they have unjustly been excluded from a will, or if they believe their bequest is inadequate. If their claim is successful, the claimant will receive a share or larger share of the deceased estate.

Time Limits To Contest A Will In NSW

The time limits that apply to making a Family Provision Claim vary across Australia. In NSW, applicants have 12 months from the testator’s date of death to contest a will. If there is any confusion over the precise time or date of death, the Court will determine a “reasonable” date of death.

A claimant should consult the estate’s executor about making a late application, but the executor cannot allow an application out of time, as it is the sole purview of the Supreme Court. The Court may allow a late application in special circumstances where the applicant can demonstrate that there was “sufficient cause” for the delay.

What Is Sufficient Cause To Contest A Will After The Time Limit?

The Succession Act 2006 grants the Court authority under section 58(2) to extend the time limits that relate to a Family Provision Claim, but only under certain circumstances. The Court must be satisfied that either all the parties agree to the late application, or that the claimant has an acceptable excuse for the late application.

A significant factor in the Court’s decision-making is whether the estate has already passed probate and the statutory waiting period, and whether the assets have been distributed to the beneficiaries. It would be difficult to reacquire assets from beneficiaries, particularly as they may have been used, spent or sold in good faith. In deciding whether to hear a late application, the Court will look at whether allowing the late application will unfairly prejudice the existing beneficiaries of the estate. In Butler v Morris [2012] NSWSC748, Justice Hallen stated that “ultimately, justice is the paramount consideration in determining whether to extend time for making an application”.

The Court will also consider the sufficiency of excuse for delay. For instance, a persuasive reason would be if the claimant were genuinely unaware that the testator had passed away. This situation might arise if the claimant was out of the country when the testator died and was not informed of the death by the executor. The Court might also be persuaded if the claimant was unaware that time limits apply to contesting a will in NSW.

Who Can Contest A Will In NSW?

The list of eligible applicants to contest a will in NSW includes the deceased’s spouse or de facto partner, the deceased’s former spouse, and the deceased’s child. A grandchild of the deceased or member of their household may apply only if they were also financially dependent on the deceased. There is also provision for an application from someone who was in a close personal relationship with the deceased before they died, who lived with them and provided support for them (but only if the support was not provided in expectation of payment or on behalf of a charity).

How Long Does It Take To Contest A Will?

The length of time that it takes to contest a will depends on whether the matter is escalated to a court hearing. It may be possible for an experienced solicitor to negotiate a settlement with the executor before it becomes a court matter. There may be a resolution within weeks if these negotiations are successful, otherwise the next step is to file the relevant documents to begin Court proceedings. The claimant should expect that this stage might take as much as six months before they are referred to mediation. Should the parties not reach agreement at mediation, a Family Provision Claim may take up to 12-18 months to be decided in the court.

Armstrong Legal’s Contested Wills Team can advise you on the time limits to contest a will in NSW, specifically whether your claim is out of time. If your claim is late, our specialist solicitors can help you to make a case for a late application. For any assistance with contesting a will, or other probate estate or testamentary law matters, please message our team to make an appointment or call 1300 038 223.

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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