Introduction

When considering whether to contest a will in New South Wales (NSW), it is crucial to understand the strict legal time limits that govern this proceeding. The rules for a family provision claim can be complex, particularly because the timeframe to contest a will in Australia varies significantly between states, making it essential to be aware of the specific regulations in NSW.

Failing to act within the specified timeframe can result in permanently losing the right to make a claim. This guide provides essential information on the 12-month deadline in NSW, explaining the critical steps, the consequences if you miss the deadline, and the limited circumstances under which an extension of time may be granted.

The Strict 12-Month Deadline for a Family Provision Claim in New South Wales

When the Countdown Begins from the Date of Death

In NSW, the timeframe to contest a will through a family provision claim is strictly enforced. The critical 12-month countdown for this legal proceeding begins on the date of the deceased person’s death, not from the date that probate is granted as many people mistakenly assume.

This distinction is vital because:

• The clock starts ticking immediately after death
• The timeline applies regardless of when the will’s contents are revealed
• The deadline is independent of when an executor is formally appointed

If the exact date of death is uncertain, the court has the authority to determine a reasonable date to establish the deadline.

The Legal Requirement to File Your Claim Within 12 Months

The requirement to act within this timeframe is a legal mandate, not merely a guideline. Under the Succession Act 2006 (NSW), an eligible person must file their family provision claim with the Supreme Court of NSW within one year of the testator’s death.

To successfully meet this deadline, you must ensure:

• The claim is formally filed in court within the 12-month period
• The claim is served on the executor of the estate within the same timeframe

Failing to meet these legal time limits typically results in the permanent loss of your right to contest the will, highlighting the importance of acting promptly.

Strategic Steps to Take Within the Timeframe

Notifying the Executor of Your Intention to Contest

Before commencing a formal court proceeding, a crucial first step is to notify the executor of the estate in writing that you intend to contest the will. This notification should be handled by your solicitor to ensure it is done formally and correctly, protecting your position from the outset.

This action serves several important purposes within the legal time limits:

•   It advises the executor not to distribute the estate until your family provision claim is finalised
•   It opens the door for negotiation and settlement discussions, which may resolve the dispute more efficiently than formal court action in NSW

Early notification can lead to a more efficient resolution process, potentially avoiding the need for lengthy court proceedings.

The Importance of Giving Notice Within Six Months

While you have a 12-month timeframe to file your claim in court, it is highly strategic to notify the executor of your intended claim within six months of the deceased’s death. This six-month window offers significant protection for your potential interest in the estate.

The timing of your notification has important legal implications:

Action	Legal Implication for the Executor
Notice Given Within 6 Months	The executor becomes personally responsible for any loss if they distribute estate assets to beneficiaries after receiving notification.
Notice Given After 6 Months	If the executor distributes the estate after six months without having received notice, they are not liable, making it much harder to recover assets.

Therefore, acting promptly within this critical period can substantially strengthen your position and protect your rights in the estate dispute process.

What Happens if You Miss the 12-Month Deadline to Contest a Will

Forfeiting Your Legal Right to Make a Claim

Failing to file a family provision claim within the 12-month timeframe in NSW can have severe legal consequences. If you miss the deadline, the court may not accept your application, which typically results in the permanent loss of your legal right to contest the will.

This rule is strictly enforced, and missing the deadline effectively ends your opportunity to make a claim.

While it is possible to apply for an extension of time, obtaining one is extremely difficult. You must provide the court with a “sufficient cause” or justification for the delay. The court will only consider granting an extension if you can present a compelling case, making timely action crucial to protect your rights in a proceeding.

The Executor’s Freedom to Distribute the Estate

Once the 12-month period from the date of death expires, the executor is legally permitted to distribute the estate’s assets to the beneficiaries. If a family provision claim has not been filed and served within this timeframe, the executor can proceed with the distribution without being held liable for any late claims.

This freedom to distribute creates several challenges for late claimants:

Challenge for Late Claimant	Explanation
Difficulty Recovering Assets	It becomes significantly harder to recover any assets once the estate has been distributed.
Executor’s Lack of Responsibility	The executor is not responsible for retrieving money or property from the beneficiaries on behalf of a late claimant.
Increased Legal Complexity	Any subsequent claim must be made against the beneficiaries directly, which is a far more complex and uncertain legal proceeding.

Seeking an Extension of Time After the Deadline

How to Apply for an Extension of Time

If you miss the deadline to contest a will in NSW, it may still be possible to make a family provision claim by seeking an extension of time. There are two primary ways to approach this proceeding after the initial 12-month timeframe has passed:

Method	Description
Formal Court Application	This involves filing the necessary documents to have a judge formally consider the request for an extension.
Consent from the Executor	The executor may agree to an extension to save the estate legal costs, particularly if the request is likely to succeed. The court generally approves such consents.

Proving Sufficient Cause for Your Delay

Obtaining an extension of time is difficult, as the court must be satisfied that you have a “sufficient cause” or a justifiable excuse for the delay.

The court will only assess your application for an extension at the same time as your actual family provision claim. This means it will first determine if your underlying case has merit before granting more time.

When deciding whether to grant an extension, a judge in NSW will consider several key factors:

•   The strength of your family provision claim and your financial need
•   The reason for the delay and how long you have waited after the deadline
•   Whether the estate’s assets have already been distributed to the beneficiaries
•   If granting the extension would cause any prejudice or harm to the beneficiaries
•   Whether there has been any unconscionable conduct on your part

Conclusion

Understanding the strict 12-month time limit to contest a will in NSW is crucial, as missing this deadline can result in permanently losing your right to make a family provision claim. While it is possible to seek an extension of time, the legal requirements are stringent, making timely action and strategic notification of the executor essential to protect your interests.

Navigating these complex legal time limits requires expert guidance to ensure your rights are protected. For trusted expertise and specialised services tailored to your needs, contact the Wills and Estates Law Firm team at PBL Law Group today to ensure your family provision claim is handled correctly from the start.

Frequently Asked Questions