How Mental Incapacity Can Extend Time Limits to Contest a Will in NSW

Introduction

Strict time limits apply to anyone seeking to contest a will in NSW, with the law generally requiring family provision claims to be filed within 12 months of the deceased’s death. However, mental incapacity or significant health issues can sometimes justify a delay, allowing the court to consider late applications in exceptional cases.

Understanding how mental incapacity may affect these time limits is crucial for those who believe they have been unfairly left out of a will or received inadequate provision. Seeking advice from an experienced wills and estates lawyer early can help protect your rights and improve your chances of a successful claim.

NSW Time Limits for Family Provision Claims

In New South Wales, there is a strict time limit for making a family provision claim to contest a will. Under Section 58(2) of the Succession Act 2006 (NSW), you must commence court proceedings within 12 months from the date of the deceased person’s death. This deadline applies to all eligible persons, including spouses, children, and dependents.

The 12-month countdown begins on the date of death, a critical point that is often misunderstood. The timeframe is not affected by other events, such as:

• When you discovered the will’s contents
• When the grant of probate was issued
• When you first received legal advice

For individuals who died after 1 March 2009, this 12-month rule is strictly enforced.

Failing to file your claim within this period can result in permanently losing your right to contest the will. While the court has the power to grant an extension, it only does so in limited circumstances where “sufficient cause” for the delay can be demonstrated. Therefore, acting promptly is essential to protect your interests.

Extending the Time Limit Due to Mental Incapacity

The ‘Sufficient Cause’ Legal Test

When an application to contest a will is made outside the 12-month time limit, the court requires the applicant to show “sufficient cause” for the delay. This legal test is not rigidly defined; instead, the court has full discretionary power to grant an extension based on the specific facts of each case.

The responsibility rests entirely on the applicant to provide a sufficient justification or excuse for not filing their claim on time.

Under Section 58(2) of the Succession Act 2006 (NSW), the court can grant leave for a late family provision claim if sufficient cause is demonstrated. The court exercises this discretion carefully, as the administration of an estate requires finality. However, it will act to prevent an injustice if an applicant has a genuine claim and a compelling reason for the delay.

How Mental Health Issues Can Justify a Delay

Courts in NSW commonly accept that significant health issues, including a mental health crisis or cognitive decline, can be a valid justification for a delay. These circumstances can directly impact a person’s ability to take the necessary legal steps within the strict time limits.

For example, in the case of Purnell v Tindale [2020] NSWSC 746, the court considered the claimant’s struggle with depression, which was worsened by grief following the testator’s death. His poor emotional and physical health was accepted as a key part of the explanation for why he was delayed in seeking legal advice and filing a family provision claim.

The court acknowledged that his health issues, ignorance of the time limit, and financial situation collectively provided a sufficient reason for the delay.

Key Factors the Court Considers for an Extension

The Length of & Reason for the Delay

When deciding whether to grant an extension, the court assesses both the length of the delay and the explanation provided. A short delay of only a few days or weeks is more likely to be excused than a delay spanning many months or years. The applicant must provide a credible reason for failing to file their family provision claim within the standard 12-month limit. Courts in NSW commonly accept delays caused by circumstances beyond the applicant’s control. The most frequent examples are:

• Significant health issues or a mental health crisis that reduced the person’s capacity to act.
• Lack of knowledge about the deceased’s death, particularly where there has been family estrangement.
• Receipt of incorrect or incomplete legal advice about contesting the will or the applicable time limits.
• Being misled by the executor or other family members regarding eligibility or the estate’s status.

Conversely, the court is less likely to be sympathetic where the delay stems from the applicant’s own inaction or indifference.

The Estate’s Status & Prejudice to Beneficiaries

The court will carefully consider whether the estate has already been distributed to the named beneficiaries. If assets have been transferred, the court becomes hesitant to allow a late claim, as unwinding a distribution can cause significant prejudice. Prejudice arises when allowing a late claim would create an unfair disadvantage for beneficiaries who received their inheritance in good faith. Typical situations include:

• Beneficiaries who have already spent or invested their inheritance.
• Those who have sold an asset they received from the estate, such as a property.
• Individuals who have made significant financial decisions in reliance on their full entitlement.

If the estate remains intact and undistributed, there is less risk of prejudice, which may strengthen the application for an extension.

The Strength of the Underlying Family Provision Claim

The court also evaluates the merits of the applicant’s potential claim. An extension will not be granted where the underlying claim appears weak or unlikely to succeed. Accordingly, the applicant must demonstrate a reasonably strong prima facie case for further provision from the estate. If a judge concludes that the claim lacks merit, the request for an extension will likely be refused. The court seeks to avoid subjecting the estate and beneficiaries to costs and stress associated with a claim that has little chance of success. Therefore, presenting a strong and arguable case for inadequate provision is crucial.

The Process for Applying for an Extension

Filing an Application with the Supreme Court

To proceed with a family provision claim outside the 12-month time limit, you must file a formal application with the Supreme Court of NSW. This involves:

• Filing a summons that seeks permission, or leave, from the court to make a late application.
• Preparing all the necessary court documents, including a summons and a detailed affidavit of evidence, to support both your request for an extension and your underlying claim for provision from the will.

It is important to note that this step is not a separate preliminary hearing. The court considers the application for an extension at the same time as the main family provision claim, meaning both matters are decided together.

The Importance of Evidence to Support Your Application

To succeed in an application for an extension due to mental incapacity, you must be prepared for giving evidence to contest a will in order to justify the delay. The responsibility is on you to present a sufficient explanation for why you could not contest the will within the standard time limits.

Medical evidence is essential in these situations. Key pieces of evidence to support your application include:

• Medical Records: Reports from your general practitioner, specialists, or any treatment facilities that document your condition.
• Psychiatric or Psychological Reports: Assessments from mental health professionals explaining how your mental incapacity or health crisis affected your ability to manage your affairs and seek legal advice.
• A Detailed Affidavit: Your own sworn statement explaining the circumstances of your delay, the impact of your health issues, and any other relevant factors.

In the case of Purnell v Tindale [2020] NSWSC 746, the court accepted that the claimant’s struggle with depression, worsened by grief, was a valid reason for his delay in filing a claim. The court was convinced by his evidence regarding his health issues and ignorance of the time limit, which highlights the importance of thorough documentation.

Conclusion

While the 12-month time limit to contest a will in NSW is strictly enforced, the law allows for extensions where mental incapacity provides sufficient cause for the delay. Successfully obtaining this extension depends on the strength of your evidence, the status of the estate, and the merits of your underlying family provision claim.

If you are concerned that mental incapacity has affected your ability to contest a will within the required timeframe, it is critical to act promptly. Contact the experienced wills and estates lawyers at PBL Law Group today for a confidential consultation to protect your rights and explore your legal options.

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