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Contesting Wills

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Step 2 - Are You Within the Limitation Period?

An application for a family provision claim needs to be filed within the following timeframes:

  • Queensland – 9 months from the date of death
  • New South Wales - 12 months from the date of death
  • Victoria – within 6 months of the date of probate being granted

What that means is if you want to contest a will you need to file an application in court no later than that date.  To do that you first need to get legal advice, determine you have a claim then instruct a solicitor to commence proceedings in court, all within the abovementioned timeframes.

An application is considered ‘made’ on the day that it is filed in the Registry 

(If the date of death is uncertain, the court will determine a reasonable time or date). 

If you do not meet this deadline and you have a good reason why, you may be able to convince the court to make an exception. But, generally speaking, time limits when challenging wills are strictly applied.

Laws have time limits for good reasons. In this area of law, it is important that deceased estates are administered quickly and efficiently. An estate can’t be fully administered if there is an outstanding family provision claim, which is why anyone who wishes to make a claim needs to do so promptly. Once the time period has lapsed, an executor can feel free to finalise his or her duties and distribute the estate. At the same time, a beneficiary can assume that there will be no challenge to his or her interests.

That being said, exceptions to the rule exist in order to prevent a claim that otherwise has merit from being statute barred too quickly.

If the last day of the 12 months falls on a non-business day you can seek an extension until the first business day.

Step 3 - What is in the Estate?