Those who are considering challenging a will by making a family provision claim need to be aware that time limits apply within which their application must be made.
A family provision claim is an application made by an eligible person to the Court seeking provision or further provision from the estate of a deceased person. The challenge is made because the person feels that they have not been adequately provided for by the will or upon intestacy.
Each State and Territory has its own legislation governing family provision claims. Some jurisdictions run the time from the date of death while others run the time from the date of the grant of probate or letters of administration.
In Tasmania, an application must be made within 3 months from the date the grant of probate or letters of administration was made.
In the Australian Capital Territory, Victoria, South Australia, and Western Australia an application must be made within 6 months from the date the grant of probate or letters of administration was made.
In the Northern Territory, the application must be made within 12 months of the date the grant of probate or letters of administration was made.
In Queensland, the application must be made within 9 months from the date of the deceased’s death.
In New South Wales, the application must be made within 12 months from the date of the deceased’s death.
All jurisdictions permit the time within which a claim must be made to be extended at the discretion of the Court. However, you should not count on the court exercising its discretion in this regard.
Generally speaking, whether or not a Court will extend the time to apply is not simply a question of time. The Court examines a number of factors including:
- the strength of the applicant’s case;
- whether there is any prejudice to the other beneficiaries of the estate;
- the sufficiency of the explanation of delay in making the claim; and
- whether the estate been distributed.
The bottom line is that if you are considering challenging a will by bringing a claim for family provision, then time limits apply.
Article By: Timothy Morton
Will Dispute Lawyer
Tim has considerable experience advising clients in relation to their rights where a Will is involved. He has acted in many family provision claims in both the ACT and NSW where he has represented both plaintiffs and defendants. He fearlessly advances his client’s interests and is pleased to say that none of his family provision cases have had to go to trial.
Tim holds a Master of Laws (Applied Law) majoring in Wills & Estates, he teaches and tutors Wills & Estates at the Australian National University, and he is a member of the ACT Law Society’s Elder Law & Succession Committee.