Is there a time limit on contesting a will?

Date: May 23, 2014

The ideal time to contest a will is as soon as the executor or lawyer has informed all parties of decisions made in the will. However, if some people don't know that someone has died and are not privy to the specific details then they could miss out.

When you do find out that a family member or friend has died, it could be too late if you want to challenge a will. It is then important to contact an estate lawyer who can assist you through the process whether or not estate assets have been distributed.

In New South Wales, an application to challenge a will must be made within 12 months of the death. Previously under the Family Provision Act this time length was 18 months, but in recent years it has been reduced.

If you are within those 12 months and you get in contact with a lawyer, then you can go through the normal process and challenge the will. If you fall outside that time frame, the situation becomes trickier.

You have to apply to the Supreme Court to have the period extended, but you will need sufficient evidence to do so. An estate lawyer can assist with the information you need for the application.

The 12 month timeframe is a blanket rule now in the state. The consent of parties including the challenger and the executor can't extend the period.

It is important to remember that despite assets and belongings being in the possession of someone for close to 12 months after the death, it may be possible to challenge the will and seek provision.

In situations where someone has been told incorrect information about a will and you miss the challenge deadline, this may give you additional ammunition for court.

When deciding to challenge any will no matter length of time from death, it is crucial to understand whether you are an eligible person entitled to apply for provision.

Under NSW law, only "eligible" people can dispute a will. Those "eligible" include

  • the spouse of the deceased person at time of death
  • the partner of the deceased person who was in a de facto relationship at time of death
  • a child of the deceased
  • a former spouse of the deceased
  • any person, at any time, who was dependent on the deceased person
  • a family member who was living and dependent on the deceased person
  • anyone in a "close personal" relationship with the deceased person

For more information about disputing a will and your eligibility, contact an estate lawyer at Craddock Murray Neumann.