Introduction

In New South Wales (NSW), family provision claims serve as a legal avenue for individuals who believe they have not been adequately provided for in a deceased person’s will or estate. These claims, governed by the Succession Act 2006 (NSW), are subject to specific time limits. Understanding these time limits is important for anyone considering making a family provision claim in NSW.

For those intending to make a family provision claim, it is critical to note that in NSW, the claim must be made within 12 months from the date of death of the deceased person. While the Supreme Court of NSW may grant an extension of time in certain circumstances, seeking legal advice and acting promptly to understand and adhere to these time limits is advisable.

Understanding Family Provision Claims

What is a Family Provision Claim?

A family provision claim is a legal avenue available in NSW for individuals who believe they have not been adequately provided for in a deceased person’s will or estate. This mechanism, established under the Succession Act 2006 (NSW), allows an eligible person—such as a close family member or dependent—to contest a will.

If someone feels that the deceased did not make sufficient arrangements for their welfare in the will, they may initiate a family provision claim. This applies even if they are mentioned in the will but believe the provision is inadequate.

To succeed in a family provision claim, an eligible person must convince the court that the will, or the absence of one, does not make adequate provision for their proper maintenance and support. The court assesses each claim based on its merits by considering factors such as:

• Claimant’s Financial Needs: Evaluating the financial requirements of the person making the claim.
• Nature of the Relationship: Assessing the relationship between the claimant and the deceased.
• Estate’s Value: Considering the overall value of the deceased’s estate.
• Other Potential Claimants: Identifying other individuals who may also be entitled to provision.

If the court determines that adequate provision was not made, it has the discretion to order that provision or further provision be made for the applicant from the deceased’s estate. Family provision claims ensure that a will is fair and provides for those who were dependent on the deceased.

Why are There Time Limits for Family Provision Claims?

Time limits for family provision claims are established to maintain fairness and efficiency in the administration of deceased estates. These deadlines align with the interests of justice for several reasons:

• Timely Estate Administration: Beneficiaries of a will are entitled to receive their inheritance within a reasonable timeframe.
• Predictable Management: Beneficiaries should be able to manage their affairs and utilise their inheritance within a predictable period.
• Efficient Distribution: Executors or administrators are responsible for promptly administering the estate and distributing assets according to the will or intestacy rules.

Family provision claims can cause delays in this process. Therefore, the law imposes time limits to balance the rights of potential claimants with the need for efficient estate administration and certainty for beneficiaries. These time limits ensure that estates can be finalised and distributed without undue delay, providing certainty to those who are entitled to inherit.

By adhering to these time constraints, the legal system maintains an orderly process, allowing all parties involved to move forward with clarity and confidence.

Time Limits for Family Provision Claims Across Australia

Australian Family Provision Claim Time Limits: A State-by-State Comparison

In NSW, family provision claims must be filed within 12 months from the date of death, and executors may distribute the estate after six months, making timely claims crucial. Across Australia, time limits for lodging a family provision claim vary by jurisdiction. Below is a state-by-state comparison of these important time limits.

Jurisdiction	Time Limit for Filing Claim	Additional Notes
New South Wales	12 months from the date of death	Executors may distribute the estate 6 months after the date of death, making recovery of assets more challenging after this period.
Victoria	6 months from the date of the grant of probate
Queensland	9 months from the date of the testator’s death	Claimants must notify the executor of their intention to make a claim within 6 months of the date of death.
Western Australia	6 months from the date of probate
South Australia	6 months from the date probate was granted
Tasmania	3 months from the grant of probate
Australian Capital Territory	6 months from the date that probate was granted
Northern Territory	1 year from the date of the Grant of Probate

Understanding these time limits is essential to ensure that claims are lodged within the appropriate periods, thereby safeguarding your rights and interests in the estate.

Extension of Time for Family Provision Claims

Applying for an Extension of Time in NSW

In NSW, there is a 12-month time limit to make a family provision claim. However, it is possible to apply to the Supreme Court of NSW for an extension of time. Claimants seeking to make a late claim must formally apply to the court, typically at the same time as the actual family provision application.

To initiate this process, the application for an extension of time should be served on the executor or administrator of the deceased estate. The court may then direct that the application and supporting affidavit be served on other interested parties, such as the beneficiaries of the will. This provides them with an opportunity to respond and protect their interests. The court will assess whether there is sufficient justification for the delay before granting an extension.

Factors the Court Considers for Granting an Extension

When deciding whether to grant an extension of time for a family provision claim, the court exercises its discretionary power and considers various factors. The responsibility lies with the applicant to demonstrate sufficient cause for the extension to be granted. While each case is assessed based on its specific circumstances, key factors often include:

• Reasons for Delay: A satisfactory explanation for not making the claim within the 12-month timeframe is crucial. Valid reasons may include ignorance of the time limit or the right to make a claim, as well as health issues.
• Strength of the Claim: The court evaluates the merit of the family provision claim itself. An extension is more likely to be granted if the claim appears to have a reasonable chance of success. The applicant needs to show that their application is not likely to fail.
• Length of the Delay: The duration of the delay is a significant factor. While shorter delays may be more easily excused, excessively long delays can be detrimental to the application. However, cases with delays of several years have been approved, highlighting that each case is fact-dependent.
• Prejudice to Beneficiaries: The court considers whether granting an extension would unfairly disadvantage the beneficiaries of the estate. If the estate has not been fully distributed, it is less likely to cause prejudice. However, if the estate has already been fully distributed, an extension is unlikely to be granted.
• Estate Distribution: Whether the estate has been distributed, and to what extent, is a critical consideration. An extension is unlikely if the estate has been fully distributed because there would be no assets against which a provision order could be made. If distribution has commenced but is not complete, the extension may only apply to undistributed assets.
• Conduct of the Applicant: The court may assess the applicant’s behaviour, including whether there has been any unconscionable conduct or deliberate delay. Prompt action in seeking an extension once the claimant becomes aware of their rights and the time limit is generally viewed favourably.

It is important to note that the court has broad discretion, and no single factor is determinative. The court will weigh all relevant circumstances to decide if granting an extension is in the interests of justice.

Case Studies: Understanding Extension of Time Decisions

Case Study: Purnell v Tindale [2020] NSWSC 746 – Extension Granted

In the case of Purnell v Tindale [2020] NSWSC 746, the court granted an extension of time for a family provision claim. The claimant was unaware of the details of his inheritance until February 2017, despite the testator passing away in August 2016. He sought legal advice several months later in July 2017.

The delay was attributed to multiple factors:

• Grief and Depression: The claimant’s emotional state following the testator’s death significantly impacted his health.
• Lack of Awareness: His initial solicitor failed to inform him about the time limits for contesting a will.

The court accepted the claimant’s explanation for the delay, noting that six months of it was due to his unawareness of the will’s terms. Additionally, the court was persuaded by the evidence of the claimant’s health issues, ignorance of the time limits, and financial constraints that hindered him from pursuing the claim promptly. Despite the estate being distributed, the court exercised its discretion to grant an extension of time.

Case Study: Wise v Barry; The Estate of Robyn Margaret Wise [2018] NSWSC 1726 – Extension Denied

Conversely, in Wise v Barry; The Estate of Robyn Margaret Wise [2018] NSWSC 1726, the court denied the applicant’s request for an extension of time. In this instance, the applicant had waited seven years after the testator’s death to make a family provision claim. The court observed that the applicant had consulted solicitors on multiple occasions during this period and was therefore aware of his legal rights.

The court concluded that:

• Deliberate Delay: The applicant had intentionally chosen not to initiate proceedings earlier.
• Hidden Motives: Bringing a claim would have exposed his unauthorised residence in the testator’s home.
• Invalid Claim: The court determined that the applicant did not have a valid claim against the estate.

Consequently, the court found no sufficient cause to grant an extension of time in this case.

Conclusion

Family provision claims in NSW operate under strict time limits, primarily requiring eligible persons to make a claim within 12 months from the date of death. Missing this deadline can significantly complicate the process, potentially requiring an application for an extension of time, which is not guaranteed and depends on the court’s discretion. Understanding these time limits is crucial for anyone considering making a family provision claim to contest a will and ensure they bring a claim within the stipulated period.

To navigate the complexities of family provision claims in NSW and ensure you do not miss critical time limits, seeking timely legal advice is essential. Contact PBL Lawyers in Sydney today to make a family provision claim and discover how our experienced team can provide you with tailored guidance and unparalleled expertise to protect your interests and help you understand the Succession Act 2006 (NSW).

Frequently Asked Questions