Key Takeaways
- You typically have 12 months from the date of the deceased’s death to contest a will in NSW.
- Extensions may be granted in certain circumstances, but they are not guaranteed.
- To contest a will there must be legal grounds for doing so, such as lack of provision, undue influence, or testamentary incapacity.
- Seeking legal advice as early as possible is crucial to avoid missing deadlines.
Understanding the Time Limits for Contesting a Will
Losing a loved one is never easy, and it can be even more challenging if you feel you have been unfairly left out of their will or not received what you thought you would. If you are considering contesting a will in New South Wales, one of the most important factors to keep in mind is the time limit for making a claim.
In NSW, the law provides 12 months from the date of the deceased’s death to contest a will. This means that if you believe you have been unfairly treated or left without proper provision, you must act within this timeframe.
What Happens If You Miss the Deadline?
While the 12-month deadline is strict, courts do have the power to grant extensions in special circumstances. However, these extensions are not automatically given, and you must provide a valid reason for the delay. Some reasons a court may consider include:
- You were unaware of the will or its contents until after the deadline passed.
- You were unable to take action due to illness or other significant life events.
- There were negotiations or discussions with the executor that delayed formal proceedings.
Despite these possibilities, it is always best to seek legal advice early to avoid the need for an extension, as there is no guarantee the court will allow it.
Who Can Contest a Will?
Not just anyone can challenge a will in NSW. According to the Succession Act 2006 (NSW), only certain people are eligible to make a family provision claim, including:
- A spouse or de facto partner of the deceased.
- A child (including adopted children) of the deceased.
- A former spouse of the deceased.
- A person who was financially dependent on the deceased at some point (such as a grandchild or another household member).
- A person who had a close personal relationship with the deceased and lived with them at the time of death.
If you are unsure whether you are eligible, consulting a lawyer who specialises in wills and estates is highly recommended.
Grounds for Contesting a Will
Contesting a will is not just about being unhappy with its contents. You must have valid legal grounds to make a claim, such as:
- Lack of adequate provision – If the will does not provide adequately for your financial needs.
- Undue influence – If the deceased was pressured or manipulated into making or changing their will.
- Testamentary incapacity – If the deceased did not have the mental capacity to understand their decisions at the time of making the will.
- Fraud or forgery – If the will was tampered with or fraudulently created.
The Process of Contesting a Will
If you decide to contest a will, here’s a general outline of the process:
- Seek Legal Advice – Contact a lawyer who specialises in will disputes to discuss your case.
- Mediation or Negotiation – Many will disputes are resolved through mediation rather than court hearings.
- File a Family Provision Claim – If you are eligible, you can apply to the Supreme Court of NSW for a family provision order if you are unable to reach a negotiated outcome by the expiration of the 12-month time limit.
- Court Proceedings (if necessary) – If further court-ordered mediation is unsuccessful, the case may go to a final hearing for a judge to decide.
Why Acting Quickly Is Important
Since there is only a 12-month window to make a claim, it is crucial to act as soon as possible. Even if you are still grieving, consulting a lawyer early can help you understand your rights and options without the pressure of an approaching deadline.
Conclusion
Contesting a will in New South Wales comes with strict time limits and legal requirements. If you believe you have a valid claim, it’s essential to act quickly and seek legal guidance to ensure your rights are protected. Whether you are an immediate family member, a dependent, or someone who had a close relationship with the deceased, understanding the process can make all the difference in securing a fair outcome.
The Berryman Partners will dispute lawyers have extensive experience challenging wills. Book a free 15-minute, no obligation call to discuss your situation today.
This blog was written by Associate,
Jessica Benson
Jessica practises in the areas of Family Law, Wills & Estate Planning,
Deceased Estates and Will disputes
