What if the contesting will time limit has passed?

Published 05 Jan 2016

Author: David Cossalter

Making the decision to challenge the will of a close family member or friend can be one of the toughest choices some people have to make. However, if you believe you haven't received proper provisions to maintain your standard of living or certain responsibilities haven't been taken care of, you are completely within your right to contest the will.

In a number of cases, though, people launch their application to the Court without realising that strict time limits apply when making a formal claim against an estate. So, what is this time limit and is there anything that can be done after this date?

12 month time limit

Under NSW legislation, every contesting will application must be submitted to the Court within one year of the date of death. Prior to 2006, this time limit was set at 18 months, so it is important to remember that this change has occurred.

Another vital consideration is the time limit differences between states and territories. A contesting will lawyer will be able to provide more information in relation to specific time limits that apply outside of NSW.

Missing the time limit deadline

If you are too late to contest the will, you might think that there are no further options for you to explore. However, in certain circumstances, you can apply to the Court for an extension or a special hearing. These situations include:

  • You didn't know the deceased had passed away

Most extensions revolve around the fact that you didn't know the person had died. Whether you weren't in close contact with the person at the time of the death or you simply weren't informed, this fact could be grounds to allow a special hearing.

Of course, you'll need to prove this in more detail for the courts to allow your claim to proceed.

  • You were unaware of the NSW time limits

If you have lived in another state, territory or country with different contesting will time limits, you may not have known that an application had to be made within 12 months. A lawyer can help you prove this fact as it isn't always accepted by a judge.

Contesting a will in NSW

It is never easy to be in a position where you feel you have to contest a will. However, this is a process that is easiest when undertaken as soon as possible after the deceased's passing.

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