time limit to contest a will in NSW

Time Limit to Contest a Will in NSW

Time Limit to Contest a Will in NSW

If you want to contest a will in NSW, there are time restrictions that you must adhere to.

In NSW, an application for a family provision order by an eligible person must be made not later than 12 months after the date of the death of the deceased person, unless the court otherwise orders on sufficient cause being shown or the parties (such as the executor of the estate) to the proceedings consent to the application being made out of time (Section 58(2) Succession Act 2006 (NSW)).

An application for a family provision order may be made whether or not administration of the estate of the deceased person has been granted. 

What Happens if You Are Outside of the Time Limit to Contest a Will in NSW?

The court will refuse a late application made more than 12 months after the date of death of the deceased person unless the applicant can show sufficient cause or the parties to the proceedings have consented to the application being made out of time.

Can a Time Limit Be Extended To Contest a Will in Sydney, NSW?

The time limit (or more correctly the ‘limitation period’) may be extended by court order on sufficient cause being shown by the claimant or with consent of the parties to the application being made out of time. 

‘Sufficient cause’ means a sufficient explanation, justification or excuse for the delay (Cobb v Cobb [2012] NSWSC 97 at [34]).

In determining whether ‘sufficient cause’ has been shown, the court will consider factors including:

  • any explanation as to why the application was not made within time;
  • the prejudice to any beneficiary whose interests might be affected by the making of an order;
  • the strength of the applicant’s case;
  • the conduct of the applicant or beneficiaries; and
  • whether it is in the interests of justice to make the order. 

As the strength of the applicant’s case is a key factor, the court will often proceed to hear claims brought out of time in full before deciding whether sufficient cause has been shown for time to be extended. Consequently, “when the Court comes to decide whether the application should be permitted, it will already know whether, if it is permitted, it will succeed,” (Vanderloo v Milne [2014] NSWSC 1932 at [170]).

The explanation for the delay should be comprehensive and should include an explanation covering the period before the limitation period as well as any subsequent delays in the period after the limited period (Underwood v Gaudron [2014] NSWSC 1055 at [125]).

The court may also allow an application made out of time if it is made with the consent of all parties to the proceedings.

Get In Touch for Expert Legal Advice in New South Wales

If believe you have a claim to contest a will of a recently deceased person, don’t leave it past the crucial 12 month mark to get in touch with a solicitor – or it may be too late. Contact us now on [email protected] or 1300 414 844 for a confidential and obligation-free initial consultation. 

Want to learn more?

Read more about who can contest a will in NSW here.

Read more about the evidence you need to gather when contesting a will here.

Read more about considering mediation when contesting a will here.

Disclaimer: the information in this article relates to NSW law and is general information only. It does not constitute legal advice and should not be relied upon. If you have a question or legal issue we recommend you contact a lawyer and obtain legal advice that takes into account your specific facts and circumstances. 

Frequently Asked Questions

To contest a will in New South Wales, you must begin the process by notifying the executor of your intention to file a claim against the deceased estate. You should then gather all necessary documents to begin court proceedings, including the will, death certificate, and any relevant evidence. It’s important to seek legal advice early to understand the time limits and procedures. Filing with the court within 12 months from the date of the deceased person’s death is crucial. If negotiations are successful, the case may be resolved without a court hearing.

Yes, it is possible to extend the time for making an application to the court for a family provision claim if you can show sufficient cause. The court must be satisfied that the delay is justified. Factors considered include the length of the delay, reasons for the delay, and whether the estate has already been distributed. The application for extension should be made as soon as possible, ideally within six months of the missed deadline. 

Contesting a will in NSW typically takes between 12-18 months from the date of filing with the court. The timeline can vary depending on whether the claim is referred to mediation, the complexity of the case, and whether negotiations are successful. If the claim is successful, the court proceedings will include a court hearing to determine the provision from the deceased estate. It’s important to file a claim within the statutory time limits to avoid delays.

Sufficient cause for an application to the court regarding an estate claim includes justifiable reasons for missing the time limits, such as the length of the delay, the reasons for the delay, and any prejudice to the beneficiaries. The court must be satisfied that the delay did not unfairly affect the estate distribution. Legal costs and the impact on the deceased estate will also be considered. It’s essential to provide a comprehensive explanation when seeking to extend time for making a family provision claim.

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