Time Limits to Contest a Will in NSW

Time Limits to Contest a Will in NSW

Under section 58(2) of the Succession Act 2006 (NSW), anyone who wishes to make a Family Provision Claim must commence court proceedings:

Within 12 months from the date of the deceased’s death.

This is a strict deadline. If you do not file the claim within this period, you need the Court’s permission to proceed.

The twelve month rule applies regardless of:

• when probate was granted
• when you discovered the Will
• when you learned you had been left out
• when you received legal advice

The clock begins on the date of death, not on any later date.

Who Must Comply With the 12 Month Deadline?

Everyone who wishes to make a Family Provision Claim must comply, including:

• spouses
• de facto partners
• former spouses
• children
• grandchildren (if eligible)
• persons who were dependent on the deceased
• persons in a close personal relationship with the deceased

Claimants with otherwise strong cases can fail if the claim was filed out of time.

Why the Time Limit Matters

Executors have a duty to administer the estate. Once the 12-month period ends, they are generally free to distribute the estate because the time for bringing a Family Provision Claim has expired.

If the estate is distributed:

• there may be no assets left from which to receive provision
• beneficiaries may have spent or sold what they received
• the Court may refuse to disturb the distribution
• retrieving funds becomes extremely complex

For this reason, claimants who delay often find that their chances of success are reduced.

What Happens if You Miss the Deadline?

If a Family Provision Claim is filed more than 12 months after the date of death, the applicant must ask the Court for permission to proceed. The Court has the power to allow a late claim, but only in limited circumstances. The Court will consider whether there is a proper basis to extend time, often referred to as showing “sufficient cause” for the delay.

This is a discretionary decision. A late claim is not automatically accepted, and the applicant must provide a clear and persuasive explanation for why the claim was not brought within the 12-month period.

The Legal Test: “Sufficient Cause”

Under section 58(2), the Court may grant leave to file a late Family Provision Claim if sufficient cause is shown or if all parties consent.

“Sufficient cause” is not defined rigidly. Instead, the Court determines it based on the facts of each case. You must persuade the Court that there is a good reason for the delay and that allowing the claim will not cause unfair prejudice to others.

Courts have repeatedly stated that this discretion is exercised carefully, because estate administration requires finality. However, the Court will act to prevent injustice where an applicant has a genuine claim.

Factors the Court Considers When Deciding Whether Sufficient Cause Exists

The Court typically considers a range of factors, including:

1. The length of the delay: A short delay (days or weeks) is typically easier to excuse than a long one.
2. The reason for the delay: Courts commonly accept delays caused by:

• lack of knowledge of the death
• being misled about rights or eligibility
• receiving incorrect or incomplete legal advice
• significant health issues
• mental health crises
• language or literacy barriers

Courts are less sympathetic where the delay is caused by inaction or indifference.

3. Whether the estate has been distributed: If assets have already been distributed, the Court is more hesitant to grant leave, especially if reversing the distribution would prejudice beneficiaries.
4. The strength of the applicant’s underlying claim: If the applicant has a strong prima facie case (for example, a needy child or dependent person), the Court may more readily excuse delay.
5. Whether beneficiaries will suffer prejudice: When the Court considers prejudice, it focuses on whether allowing a late claim would cause practical disadvantage to beneficiaries. This can include situations where beneficiaries have already spent their inheritance, sold or transferred assets, changed their financial position in reliance on the distribution, or would face financial loss if the estate had to be reopened. The greater the prejudice to beneficiaries, the less likely the Court will extend time.
6. Whether justice requires the claim to proceed: Courts aim to prevent unjust outcomes, particularly where the deceased owed a clear moral duty to provide for the applicant.

These principles reflect the analysis in cases such as Sreckovic v Sreckovic [2018] NSWSC 1597, where a late claim was allowed because the delay was moderate, the estate was not yet prejudiced, and the applicant had an arguable case.

Examples of Situations Where Late Claims Have Been Accepted

Courts have allowed late claims where:

1. The applicant did not know about the death: This is common in estrangement cases or where the deceased lived overseas.
2. The applicant was misled: Incorrect statements made by executors, family members or inexperienced advisers can justify delay.
3. Serious illness prevented timely action: Both physical and mental health conditions are considered.
4. The applicant relied on ongoing negotiations: Where executors suggest settlement is possible and the applicant delays filing as a result.
5. The estate is still intact: If distribution has not yet occurred, there is less prejudice to beneficiaries.
6. The applicant has a compelling moral claim: For example, an adult child in financial hardship that made financial contributions to their parent is left without adequate provision.

Examples of Situations Where Late Claims Have Been Rejected

Late applications are usually refused where:

1. The applicant knew about the death but took no steps: Lack of urgency or “waiting to see what happens” is not a valid excuse.
2. The delay is extreme: Claims made years out of time are rarely successful without extremely compelling reasons.
3. Beneficiaries will suffer real prejudice: For example, where funds have been spent, relied upon or invested.
4. The applicant has a weak case: If the underlying merit of the claim is low, the Court is less likely to exercise discretion in the applicant’s favour.

Does the Executor Need to Notify You of the Time Limit?

No. Executors do not have a legal duty to warn potential claimants about the deadline.

Many people mistakenly believe that someone will tell them if they have been left out of a will. This is not the case. The responsibility to make enquiries and seek advice rests with the potential claimant.

Can You Contest a Will After Probate Has Been Granted?

Yes. Probate does not affect eligibility or the ability to make a claim. The relevant date in NSW is the date of death, not the date of probate.

However, if the estate is distributed following probate and the 12-month period has passed, the chances of a successful claim diminish sharply.

How to Protect Your Rights if the Deadline Is Approaching

If you are nearing the deadline or worried about time, you should:

1. Seek legal advice immediately: Do not wait. Even a short delay can make a big difference.
2. Request a copy of the Will: Eligible persons can obtain a copy under section 54 of the Succession Act 2006 (NSW).
3. Gather financial and personal information: This will be needed for your affidavit.
4. File proceedings before the deadline if instructed: This preserves your rights. It does not prevent further negotiations.
5. Keep records of exchanges with the executor: Evidence of misleading information or delayed disclosure may help in late applications.

Conclusion

In New South Wales, the time limit to contest a Will is 12 months from the date of death. While the Court can allow late claims, this requires sufficient cause being shown, and the test is applied carefully. The longer the delay, the harder it becomes to persuade the Court to exercise its discretion.

If you believe you are eligible to contest a Will, you should seek legal advice as early as possible. Acting quickly maximises your chances of a successful outcome.