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.
Farrar Gesini Dunn’s estate team specialise in estate litigation. If you want to discuss making or defending a family provision claim then contact us today.
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Article By: Gillian Hunter
Director – Estate Lawyer
Having spent the last 3 years in government where she led a team administering complex estates, Gillian has returned to private practice with a refined knowledge framework and an eagerness to work with private clients once again. Gillian brings empathy to her practice and is focused on preserving relations in the resolution of disputes, where possible.