How long do I have to contest a will in NSW?

If a loved one has died and you are thinking about contesting their will, the single most important thing to know is this: in New South Wales you generally have 12 months from the date of death to start your claim. Miss that window and your right to make a family provision claim can be lost, even where the will is plainly unfair.

This article explains how the time limit works, the narrow circumstances in which the Supreme Court will allow a late application, and the practical steps you should take immediately if time is running short.

The 12-month rule under the Succession Act 2006 (NSW)

A family provision claim in NSW is a Supreme Court application made under Chapter 3 of the Succession Act 2006 (NSW). Section 58(2) of the Act fixes the limitation period: the application must be made not later than 12 months after the date of the deceased’s death.

That is a hard date. It does not run from the date of the funeral, the date you read the will, the date probate is granted, or the date you found out you had been left out. It runs from the day the person died.

For deaths that occurred before 1 March 2009, a longer 18-month period applied under the old Family Provision Act 1982. For everyone dying since, it is 12 months – and that is now the position for almost every contested estate matter we see.

What “starting your claim” actually means

To stop the clock, you need to file a summons and a supporting affidavit in the Supreme Court of NSW within the 12 months. Sending a letter to the executor, raising the dispute in correspondence, or even reaching agreement in principle is not enough. The proceedings must be on foot.

Because preparing the initial affidavit material properly takes time – gathering financial documents, evidence of your relationship with the deceased, valuations, and so on – you should not be approaching a solicitor in the final fortnight. We routinely see people lose perfectly good claims because they waited until month eleven.

Can the Court extend time?

Yes, but only in limited circumstances. Section 58(2) allows the Court to extend the time limit where the applicant shows “sufficient cause” for the delay. The Court will weigh a number of factors, including:

• the length of the delay and the explanation for it;
• whether the estate has already been distributed;
• whether the applicant has an arguable case on the merits;
• any prejudice to the beneficiaries who have received their entitlements; and
• the conduct of the executor.

The case law makes clear that out-of-time applications are the exception rather than the rule. The Court has refused extensions even where the merits looked strong, where the delay was lengthy and unexplained. Conversely, extensions have been granted where the delay was modest, the estate was still intact, and there was a credible reason such as grief, dependence on the executor for information, or efforts at negotiated resolution.

If you are already out of time, do not assume the door is closed – but do not assume it is open either. Get advice quickly.

The hidden deadline: distribution of the estate

There is a second timing risk most claimants do not appreciate. Under section 93 of the Probate and Administration Act 1898 (NSW), an executor who waits at least six months from the grant of probate before distributing the estate, and who has given proper notice, is generally protected from personal liability if a claim is later made. The assets may have gone – to overseas beneficiaries, to charities, to a beneficiary who has spent them – and you may have no practical recovery even if a court awards you provision.

In other words, even within the 12-month window the smart move is to put the executor on notice as soon as you decide you will be making a claim. That preserves the assets in the estate and protects your position.

Notional estate: a partial answer to the distribution problem

NSW is unusual in Australia because of its “notional estate” provisions in Part 3.3 of the Succession Act. In certain circumstances the Court can claw back assets that have been distributed, gifted away before death, or held jointly, and treat them as part of the estate for the purposes of a family provision order. This is a powerful tool but it has its own time limits and complexities, and it is not a substitute for getting in within 12 months.

What if probate has already been granted?

A grant of probate does not stop a family provision claim. The 12-month clock runs from the date of death, not the grant. You can – and many claimants do – start proceedings after probate has been granted. The executor is then required to defend the claim on behalf of the estate.

A note for executors and beneficiaries

If you are the executor of an estate, the same 12-month period is your protection. Until it expires (and depending on the notice given), you cannot safely complete distribution because a claim may still appear. Two practical points:

•   Wait six months from the grant of probate before distributing, unless you have a very clear picture of who might claim. Section 93 of the Probate and Administration Act 1898 (NSW) protects executors who give proper notice and wait the prescribed time.

•   If you receive a letter foreshadowing a claim, take advice quickly. Negotiated outcomes before proceedings are filed are common and almost always cheaper than a defended hearing.

Beneficiaries who have already received a distribution can, in some circumstances, be required to return assets to the estate if a notional estate order is made – another reason to take any foreshadowed claim seriously rather than hoping it goes away.

What you should do now if time is short

If the death occurred close to 12 months ago:

1. Do not wait for the executor to “sort things out” or for an inheritance dispute to resolve itself by correspondence. It will not.
2. Gather what you have – a copy of the will if you can get one, the death certificate, evidence of your relationship with the deceased, and a snapshot of your own financial position.
3. Contact a wills and estates lawyer with NSW Supreme Court experience. A family provision claim is run in the Supreme Court’s Succession List, and you want someone who knows that list.
4. Notify the executor in writing that you intend to claim. This may pause distribution and preserve the estate.

Why this matters – and how Baker Love can help

Baker Love Lawyers acts in contested estate matters throughout New South Wales – from Newcastle and the Hunter through to Sydney, the Central Coast, the North Coast and regional NSW. Our team includes Adrian Corbould, Special Counsel and a Law Society of NSW Accredited Specialist in Wills and Estates, who has been recognised in Doyles Guide as a leading wills and estates litigation lawyer in NSW every year since 2018. We act for claimants who have been left out or inadequately provided for, and we act for executors and beneficiaries defending claims brought against an estate. Most of our work runs in the Supreme Court of NSW Succession List and at court-annexed mediation.

We offer a range of fee arrangements, including, where appropriate, no win no fee for family provision claims. Whether that option is available depends on the merits of your claim and the size of the estate, and we will tell you that honestly at the first consultation rather than waiting until you have engaged us.

If you are within – or close to – the 12-month limit, time is the one thing we cannot give back.
Call Baker Love on (02) 4944 3322 for a confidential discussion, or use the contact form on the website and we will get back to you the same business day.

This article provides general information only and is not legal advice. Time limits and the operation of the Succession Act 2006 (NSW) depend on the particular facts of each case. You should obtain advice tailored to your circumstances before acting or refraining from acting on anything in this article.

CONTACT US