How long do you have to bring a family provision claim to contest a Will?
There are strict time limits that apply for an eligible person to contest a will. Every state and territory in Australia has varied time limitations, so it is of the utmost importance that you contact your solicitor as soon as possible should you believe you have been left without adequate provision in a will.
This article lists the time limits to bring a claim across Australia and sets out the requirements to make a claim outside of the time limits.
Queensland
In Queensland, the Succession Act 1981 sets out that an eligible person is required to notify the executor of a claim within 6 months of the date of the death and that the ensuing Family Provision Claim must be filed within 9 months of the date of death. The Court will only consider a claim outside of the time limit if you have a compelling reason, which will take into account the length of the delay, whether the estate has already been distributed, and that you have a genuine excuse.
New South Wales
The NSW Succession Act 2006 provides that a claim must be filed within 12 months of the date of death. As in Queensland, the Court will only consider a claim outside of the time limit if you have a compelling reason, which will take into account the length of the delay, whether the estate has already been distributed, and that you have a genuine excuse.
Victoria
The Vic Administration and Probate Act 1958 states a claim must be filed within 6 months from the date of probate being granted. Any late claim must have the approval of the court, which will only be given if the claim will not prejudice the estate/beneficiaries. Of particular importance, it is also noted that a late claim will not be heard if the estate has already been distributed.
South Australia
The SA Inheritance (Family Provision) Act 1972 provides for the same 6-month time limit from when probate was granted as is provided for in Victoria. However, it has a more relaxed out-of-time claim provision, similar to that in NSW and Queensland.
Northern Territory
In the Northern Territory Family Provision Act 1970, a family maintenance claim must be filed within 12 months of a probate being granted, and an out-of-time application will only be considered with the special leave of the court.
Western Australia
The WA Family Provision Act 1972 has the same time limit as Victoria, being claims must be filed before 6 months from the date of probate being granted. However, the court only has the authority to allow late applications if they see fit.
Australian Capital Territory
As in WA and Vic, the Family Provision Act 1969 states a claim must be filed before 6 months from the date of probate being granted, and the court only has the authority to allow late applications if there is sufficient cause.
Tasmania
The TAS Testators Family Maintenance Act 1912 has the shortest notice period in Australia, being 3 months from the date of probate being granted. Similar to Victoria, any claim filed after this deadline must have the approval of the court, which will consider the impact on the parties involved. A late claim will not be heard if the estate has already been distributed.
Please contact our dedicated team at CJM Lawyers to discuss the time limits to your potential claim upon an estate.
Disclaimer: This article is for general understanding and should not be used as a substitute for professional legal advice. Any reliance on the information is strictly at the user's risk, and there is no intention to create a lawyer-client relationship from this general communication.
