Kyle McCabe is a Wills & Estate lawyer based in our Penrith office. Kyle highlights in his latest blog that in New South Wales, there are strict time limits on how long a person has to make a claim for family provision, commonly referred to as “contesting a will” of a deceased person’s estate.

Under section 59(2) of the Succession Act 2006, a claimant, that is the person wanting to contest the provision made for them in the will of a deceased person, has 12 months from the date of death in which to lodge a claim with the Court. If this time limit is not complied with, then the claimant must be able to show sufficient cause as to why the Court should consider their claim which is made outside of that 12 month period, and subsequently extend time which would allow the claim to be accepted. Of course, this is a separate issue to the actual merit of the claim, which would be determined separately.

Extension of time

The Supreme Court of New South Wales in Thomas v Pickering; Byrne v Pickering [2011] NSWSC 1572 set out what factors the Court will look at when deciding whether to extend the 12 month limitation for making a claim:-

  • Reason(s) for the lateness of the claim;
  • Whether the beneficiaries under the will would be unfairly prejudiced;
  • Whether there has been any unconscionable conduct by either party;
  • What is the strength of the claimant’s claim.

Justice Hallen of the Supreme Court made the statement in Butler v Morris; Butler (bht NSW Trustee & Guardian) v Morris [2012] NSWSC748:-

“Ultimately, justice is the paramount consideration in determining whether to extend time for making an application…”

What this all means is that in deciding whether or not to allow an out-of-time claim, the Supreme Court has a wide discretion, and may look at all the reasons, or excuses that a claimant gives for not making a claim within 12 months from the date of death. Of course, it is important to seek legal advice at the earliest opportunity.

It is also important to note that the Court will not decide whether to extend the time limit until the final hearing of the matter. The risk involved with this is that by the time the matter has reached the final hearing stage, which is often 12-18 months after the claim is filed, significant costs have been incurred. If the Court does not then allow an extension of time, an adverse costs order may be made against you, in which you may be asked to pay the costs of the Estate. This makes receiving expert legal advice crucial.

Case Study

Turner Freeman Lawyers recently acted for a lady (“the plaintiff”) in a claim which was filed in the Supreme Court approximately 18 months after the deceased’s date of death, being out of time by around 6 months. The plaintiff was a former de facto spouse of the deceased. The plaintiff was in a relationship with the deceased over a period of approximately 14 years, however the de facto relationship ended some 15 years prior to the deceased’s death.

The plaintiff’s reasons explaining the delay in making her claim included:-

  • Not seeking legal advice until after the 12 month time limit had expired; and
  • Not realising that she was able to make a claim until after speaking with Turner Freeman.

The matter proceeded to a compulsory mediation where Turner Freeman was able to successfully settle the plaintiff’s claim. The plaintiff settled her claim on the basis that she received $100,000 from an Estate worth $500,000.

Speak to Turner Freeman today

If you or someone you know is wondering whether a claim for family provision can be made, contact Turner Freeman today and speak to one of our experienced Wills and Estates lawyers who will provide you with accurate, no obligation advice. Remember, time limits do apply, and it is important not to delay any further.

Our New South Wales offices are in Sydney, Parramatta, Newcastle, Penrith, Wollongong and Gloucester.