Is there a time limit when pursuing a family provision claim?

Published 25 Aug 2015

Author: David Cossalter

Many people are conflicted about their decision to file a family provision application, as sparking an inheritance dispute could put strain on loved ones. What's more, it may begin a long, drawn-out process.

In some circumstances, however, there may be very few options if you feel you were inadequately provided for or have other grievances with regards to the will.

Nevertheless, there are time restrictions you should consider when making your decision. You must challenge the will within 12 months of the individual's date of death in order to proceed.

Get in touch with a contesting wills lawyer as soon as possible if you're thinking about pursuing a claim. They'll be able to give you further details of your rights and the legal requirements involved.

Are there exceptions?

There are a number of circumstances where the courts may waive the 12-month deadline if they feel there is a reasonable reason for the delay. Ask your legal team for more information if you believe this applies to you.

Situations where you may be allowed to proceed with your claim even when the time limit has passed include not being aware the person had died. For example, you may be estranged from the deceased.

The courts may also allow a claim if an individual was unaware of the deadline or has mental disabilities that prevent them from fully comprehending legal proceedings.

Some people may even be threatened or coerced into forgoing a claim, but if you can provide proof nefarious activity has occurred, the time limit can be extended.

Are there other considerations?

Before pursuing your case, you'll need to find out whether you are an eligible person in the eyes of the law. You can make a family provision claim if you are a spouse, de-facto partner or child of the deceased.

Other eligible individuals include grandchildren who have been members of the testator's household, as well as dependents and people who were living in a close personal relationship with the deceased when they died.

You should also keep in mind that the courts only consider an application to have been made once it is filed with their registry. In other words, you may miss out on your opportunity if you wait until the last minute before telling your lawyer you'd like to proceed.

If you would like to discuss a family provision claim with an experienced law firm in NSW, please contact Gerard Malouf & Partners to speak with an expert.

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