If you delay obtaining legal advice you run the risk that estate assets have been sold, transferred or spent, and as a result there could be nothing left in the estate for you to claim against. Therefore to protect your entitlements, we recommend you seek prompt appropriate legal advice if you want to contest or challenge a Will.
Time limits for contesting a Will
Strict time limits apply to these types of claims. A Family Provision Application notice of your intention to apply for further provision from the estate must be given to the Executor of the Estate within six (6) months from the deceased’s date of death.
After six (6) months have passed since the deceased’s death, if the Executor has no notice of a claim, he/she can distribute the estate in accordance with the terms of the Will.
Therefore, although this notice is not fatal to a claim, you run the risk that there are no assets left in the estate to claim against.
Within nine (9) months of the deceased’s date of death you must then file your Application and Supporting Affidavit setting out your claim in the Court and serve it on the Executor/s.
It’s important to distinguish between an Executor and someone who holds Power of Attorney. The Executor has the power to administer an estate of someone who has died, while Power of Attorney empowers someone to make decisions of their behalf while they are alive.
To contest the validity of a Will an application should be made before a Grant of Probate has been issued from the Supreme Court, or if no Grant of Probate has been applied for within six (6) months of the deceased’s date of death.
It can be extremely difficult to progress your claim if a time limit has expired. If you are out of time, you would need to obtain leave of the court to allow you to bring your application. You must have very good reasons to explain your delay.
Be sure to get legal advice as soon as possible.
Time limits in Queensland
- Notice should be given within 6 months of date of death to the Executor/s
- 9 months from date of death to file the application
For more information about Family Provision Applications or defending the Estate against such a claim, get in touch with us on 13 43 63 or via our online enquiry form.