Contesting a will in Australia is a process which must typically be started within a specific time frame. If you try to contest a will after that time frame, you have to have an exception, such as not knowing about the death of the deceased person until after the deadline passed.
If you were estranged from the deceased, provision might have been withheld unlawfully in their estate plan and will, giving you grounds to contest. You should lodge a claim as soon as possible to gain your rightful share of the inheritance.
Waiting to contest a will can be problematic, because once the will is granted probate and the executor can disburse the assets included in the estate, it can be impossible to recoup them from the beneficiaries to whom they were assigned.
How long do you have? That’s one of the most important questions when contesting a will. The answer may vary depending on which Australian state or territory the willmaker lived in. Here’s what you need to know about the timelines for contesting a will.
All in the timing
Statutory deadlines for contesting a will vary depending on the location of the deceased estate. The date when the clock starts ticking varies as well, as some jurisdictions base the deadline on then the testator died, while others only begin the countdown once probate has been granted.
If you believe you were unfairly treated in a will or that adequate provision was not made for you or a minor child, there are a few things you need to do to lodge your claim. You’ll have to file a family provision claim, and notify the executor of the will in writing that you are filing. Your attorney will also send an application to the Court to put a stay on the probate, so the executor cannot move ahead with disbursing the estate. This gives you time to pursue your claim.
To make all of this happen before the time runs out, you’ll need to know the accurate date by which you have to file your claim with the Supreme Court to contest the will.
In the Australian Capital Territory, you only have six months from the date of probate to lodge a claim and contest a will. There may be some wiggle room for a claim to be filed later under the Family Provision Act 1969. The Court will have to judge that there is sufficient cause to grant the extension for you to successfully file a family provision claim after the deadline has passed.
New South Wales
In New South Wales, you have an entire year from the date of the testator’s death to file your family provision claim. When the exact date of death isn’t known, the Court has discretion to assign a reasonable date. Your rights to apply later are protected in some instances by the Succession Act 2006, which allows the Court to determine if you have appropriate justification for your delay and grant an extension for filing your claim outside of the traditional window.
In the Northern Territory, you have a little longer; the year allowed for filing a claim doesn’t begin until the probate grant. You may qualify for a late qualification with special leave of the Court, allowing a special circumstances claim to be made later under the Family Provision Act 1970.
Queensland has a slightly more complex timeline. First, you have to notify the executor in writing that you plan to contest the will, and this must be done within six months of the date of the testator’s death. However, notification can be sent after the six-month period, and if the estate has not yet been distributed, the executor must pause the process and address the claim. In either case, the family provision claim must be filed within nine months of the deceased’s death. You’ll have to make a very compelling case to obtain a hearing for a later application, and the beneficiaries and executor may also be allowed to share objections and fight back against your family provision claim, according to the Succession Act 1981.
In South Australia, once probate is granted, you have just six months to file your family provision claim. The Inheritance (Family Provision) Act 1972 supports claimants who wish for an extension to receive one in certain situations. The Court may allow you to join existing proceedings. If the beneficiaries have already been given their bequests, the disbursement is final, and you won’t be able to regain any of your lost inheritance by filing a provision claim.
Tasmania has the strictest time limit for contesting a will. You only have a scant three months from the date of probate to make your claim. An extension might be considered by the Court if the delays caused are judged to not be a hardship, but if funds are disbursed already, it is too late, and your chance at regaining any of your inheritance will be gone forever.
Victoria is another region which only allows six months from the date of probate grant to contest a will in Victoria. The approval of the Court is required for late applications according to the Administration and Probate Act 1958. You’ll have to show that delay won’t harm beneficiaries or prejudice the estate, and once again, if disbursement has already occurred, you’ll leave empty handed, having lost your one chance at gaining your rightful inheritance.
Finally, Western Australia also demands that applicants make a Family Provision Claim no more than six months after the date of the grant of probate. However, late applications may be reviewed by the Court without prejudice, according to the Family Provision Act 1972.
Establishing probate in Australia
The probate process is used by the Court to validate the will and approve the disbursement of the deceased estate. The probate grant recognises the executor named in the will (and the Court can remove them if it is shown they are not acting in the best interest of all beneficiaries).
A grant of probate allows the executor to begin distributing assets from the estate, so your lawyer’s first step is to apply to prevent probate from going forward. This provides time for your family provision claim to be fully settled and prevents everything from being shared out before you have a chance to receive your inheritance.
If adequate provision was not made for your support, your attorney may also request that notional estate (assets not included in the estate, such as a superannuation fund that may have been assigned to someone else as a beneficiary) be included as a way for you to receive provision. This is very common if the beneficiary of the superannuation fund already is well provided for in the will from the main estate.
In cases of contested wills, the probate grant can be reinstated once the claim is settled, and the executor can proceed to disburse funds as ordered by the Court or agreed on in an early settlement negotiation or court-ordered mediation.
For challenged wills, the entire will might be declared invalid. This can happen in cases of fraud, forgery, lack of testamentary capacity on the part of the deceased, or someone exerting undue influence over the deceased at the time they made their will. If this happens, a previous will may be granted probate and validated.
If there is no will and the deceased died intestate, the Court follows the Succession Act to disburse the assets of the estate and all eligible persons must file family provision claims to be heard. Having an experienced estates attorney on your side can help you build a solid claim for provision.
Contesting a claim
Contesting a claim may end up being a long, drawn-out process, especially if another beneficiary or eligible person is also fighting for their share of the inheritance.
The most common reason to contest a will is because of inadequate provision, which can mean you didn’t receive your fair share of the estate, or you might not have been assigned a share at all. You’ll need to file your family provision claim quickly. Alternatively, if you need to challenge a will because of undue influence or a lack of mental capacity of the testator, you have to apply to the Court to have the will thrown out. Again, time is of the essence.
The Court will take many factors into account when considering a family provision claim, including the size of the estate, the number of beneficiaries, their individual needs and claims, and your eligibility to claim provision from the deceased’s estate.
All this talk of contesting a will may make you worry about your own will and the possibility of it being contested after you die. While there is no way to guarantee your will won’t be contested, you can usually make sure it isn’t successfully challenged.
The best course of action is to have your estate plan drawn up with the help of an experienced attorney, and having both your lawyer and your medical provider present when you sign your will. They can testify that you were of sound mind and not under undue influence.
You may protect your will against a contest or challenge by ensuring you pay attention to your moral obligations under the Succession Act during estate planning. You can also take the step of distributing your estate before you pass away so you can be sure your wishes are followed.
Why Gerard Malouf & Partners?
Ar Gerard Malouf & Partners, we take your case on a no-win, no-fee basis, meaning that if you unexpectedly lose your claim, we waive our fee. This rescues your risk for incurring legal costs if you choose to contest a will.
Your chances of successfully contesting a will with us are high. We have successfully contested wills and won large increases in inheritances for multiple clients who were unfairly treated. Our firm is small enough to give you personalised care, and large enough to have the resources needed to help you make your case. Contact us for no-obligation legal advice about your claim.