Time Limits when Contesting a Will in NSW

The best time to commence your will dispute claim.

Whilst technically you have 12 months to file a claim, you would be wise to have your solicitor notify the Executor or Administrator of the Estate of your intended claim with 6 months from the date of death. If you don't give notice the Executor or Administrator after 6 months could distribute the estate. If you do give notice, the Executor or Administrator will be personally responsible for any loss of money or property following distribution of the Estate to the beneficiaries after 6 months from death.

Within 12 months.

You have 12 months from the date of death to file a 'family provision claim' in court and served on the Executor. If there is a problem identifying the date the deceased passes away, either a claimant or the Executor named in the Will or if there is no will, the Administrator will make the application to the court. If the Administrator is not actually named in the Will he or she will be the person with the largest entitlement to the estate.

After 12 months.

If a claim has not been filed and served within 12 months, immediately upon the expiry of 12 months  the Executor or Administrator of the estate may distribute the estate to the beneficiaries named in the Will. When the distribution is made the Executor or Administrator is not responsible to retrieve any money or property from the beneficiaries if a 'late claim' is made. If a claim is made after distribution the defendant named in a claim with the beneficiaries not the executor.

Seeking an extension of time.

A claimant may be able to claim after the 12 months period and that may occur in two ways. The first way is to make an application to the court and the second way is to obtain the consent of the Executor and in due course the court will generally approve the consent. The Executor may consent to the extension of time to save the costs of a court case if he or she can see that the application will be successful. In other words, if the claim for extension of time covers all the 'rules' the Executor would save everyone time and money by consenting.

Making an application to the court for an extension of time.

The strange thing about this law is that the court will only judge the application for an extension of time at the same time as the actual application for the claimants provision or further provision. The reason for this is the court must first see whether the late application has merit. If the judge decides the claim is not warranted he or she will not grant an extension.

When will an extension of time likely to be approved by a judge?

The judge will look at many things however the main things you must show are;

1. You have a good family provision claim. In other words you need help financially.

2. The Estate has not been distributed or only partly distributed.

3. The size of the Estate and how far out of time you are.

4. Sometimes a week or two may be too long; other cases several years is OK.

5. We have had cases where 5 years and 8 years was approved.

6. Every case will be completely different.

7. The judge has discretion and will look at the overall circumstances of each case. 

doyles Law Society of NSW STEP Law Society of New South Wales Queensland Law Society Law Institute Victoria

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Eric Butler, SolicitorEric Butler, Will Dispute Solicitor in NSW, Victoria & Queensland Level 13, 111 Elizabeth Street ,
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Eric Butler, SolicitorEric Butler, Will Dispute Solicitor in NSW, Victoria & Queensland Level 11, 456 Lonsdale Street,
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