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 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 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?

The court will refuse an 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?

The time limit (or more correctly the ‘limitation period’) may be extended by court order on sufficient cause being shown 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.

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 – 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.