Time Limits for Contesting a Will and Probate
Summary by Eric Butler. Law Society Accredited Specialist in Wills & Estates Law. I've worked the last 24 years doing nothing but family provision claims.
Free Call: 1800 960 156
NSW, Queensland and Victoria each have very different rules about the time you have to make an application for provision out of the estate of a deceased person. But first let me explain a little about probate because we are frequently asked whether a claim can be made after probate has been granted to the executor.
The answer is Yes.
Probate Time Limits. Probate means 'proof of the will'. When an application is made for probate the court Registrar looks at the will and makes a determination as to whether or not it is valid. That is, he or she looks at the will and the executors application for probate to see that no one has objected to the process and that everything about the will appears to be normal and that there appears to be no fraud, forgery, undue influence or any allegation of lack of mental capacity.
When contesting a will (making an application for Family Provision) yes, you can make an application after probate is granted. In fact orders will not be made by the court until probate is granted. When a family provision claim is successful the court order is attached to the probate document and kept as a record of the variation of the will just as if the order was a codicil to the will.
However if you are enquiring about challenging the validity of a will that is a different story. In that case you are well advised to challenge the validity of the will before probate is granted because afterwards it is much harder to achieve. The process then entails seeking a revocation of the grant of probate and can be quite complicated and expensive. If this area of law is of interest to you please go the pages about "Challenging a Will' on this site.
NSW Contesting a Will Time Limits.
You have 12 months from the date of death of the deceased in question to file an application for family provision. However you would be wise to give notice of your intended claim to the executor well inside that period of time.
If you do not file your application in court within the 12 month time limit you may still end up being allowed to claim however that will only be in special circumstances the main one being that the estate had still not been distributed to the beneficiaries at the time of your claim. If your claim is out of time you will have to demonstrate to the judge that you had sufficient cause for being late and provide the judge with your justification, excuse or explanation. A late application cannot proceed just because the executor agrees to extend the time limit. Only a judge can extend the time limit.
Victorian Contesting a Will Time Limits.
You have 6 months from the grant of probate to file your claim. If you are late filing your claim you can apply for an extension of time however you must be able to demonstrate to the court that the estate would not be prejudiced in bringing a claim out of time and state your reasons for the delay in making the claim.
Like other States it is extremely unlikely you will get an extension of time if the estate has been distributed after the expiration of 6 months and before your claim has been filed with the Court.
Queensland Contesting a Will Time Limits.
Queensland is different again. You have 9 months after death of the deceased to file your claim however you must give notice to the executor that you intend to make a claim against the will of the deceased. Your notice must be in writing and must be given within 6 months of the date of death. If the executor does not receive notice of your intended claim, and 6 months has passed he or she can distribute the estate. Then you would have to chase the funds.
You can make an application to the court seeking an extension of the 9 month time limit and if the estate has not been distributed at the date when the notice is received, the executor should not distribute the estate until after the courts determination. The court will consider a number of things when determining your out of time application including, the length of the delay; the reason for your delay; whether the estate has been distributed; and whether you have engaged in any unconscionable conduct.
The reason you want to put the executor on notice of your intended claim is to seek an assurance from the executor that he or she will not distribute the estate until the finalisation of your claim. If the executor refuses to give that assurance and there is a real threat that the estate is going to be distributed you would be entitled to seek an order from the court to stop any distribution.