Will Disputes – Family Provision Claims and Time Limits

If you have been left out of a Will, or have been given a smaller provision than what you thought, you may be able to challenge the Will by what is known as a family provision claim. The basis for this claim is that the Will-maker did not adequately provide for a person, for whom they had a moral obligation to make proper provision.

There are limitations on who can apply and the timeframes that they have to make a claim. Sometimes, there are good reasons for the delay and the Court will grant leave to permit the claim even though a person has missed the deadline for these Will disputes. You should consult a specialist estate dispute lawyer to discuss whether it is likely the Court will reach that conclusion.

 

Who can apply?

One of the limitations on family provision claims is that the applicant must be considered an ‘eligible person’. Determining who is eligible will depend on the law of the State of Territory where the claim is considered, for example:

• Sections 57 and 59 of the Succession Act 2006 for NSW
• Sections 7 and 8 of the Family Provision Act 1969 for the ACT
• Section 91, Administration and Probate Act 1958 for Victoria

Generally, eligible people include partners and children. This can sometimes include dependant grandchildren or stepchildren.

 

What factors does the Court consider?

In a family provision claim the Court considers different factors to establish if the deceased had a moral obligation to provide for the person making the claim (known as the applicant). Common factors that the Court may consider include:

• the relationship between the deceased and the applicant
• the extent and nature of any obligation or responsibilities owed to the applicant
• the nature of the estate
• the financial circumstances of the applicant and other beneficiaries
• any disabilities or health needs of the applicant
• any contribution made to the deceased’s estate
• the adequacy of any provision that was made in the will for the applicant
• the testamentary intentions of the deceased

 

When can you apply?

The limitation period for when a person may make a claim on an estate is determined by relevant State or Territory law. In New South Wales, this claim must be filed within twelve moths from the death of the deceased. In Queensland an application must be made within nine months from the deceased’s death. In the Australian Capital Territory, Victoria, South Australia, and Western Australia an application must be made within six months of the date a Grant of Probate or Letters of Administration is made.

 

Extension of time

There are some circumstances where a person may be able to contest a Will after the time limit has been reached. The Court has the power to grant an extension of time for applications to be made, where they find there is a reason to do so. They may consider a variety of factors, including the circumstances on the applicant, the length of delay, the effect of granting or not granting an extension may have on beneficiaries such as whether it would be unfairly beneficial, particularly if distribution of the estate has occurred, and whether any parties have acted unfairly or dishonestly.

 

Case Study: Tam v Chen [2023] VSC 12

The recent Victorian estate dispute case of Tam v Chen [2023] SDC 12 involved the Court considering an applicant’s claim for an extension to make a family provision claim over her mother’s estate. At the time of the application, it was 13 months past the expiration of the limitation period under Victorian law. The applicant suffered a mild intellectual disability and disabling mental illness. Her two cousins, who were the applicant’s only living relatives in Australia, were the executors of the estate. In coming to a decision, the Court considered applicant’s eligibility to bring a claim, the strength of the case and the impact that granting an extension would have on the other beneficiaries. The executors did not oppose the granting of an extension of time.

The Court ultimately granted the extension of time on the basis that the applicant was certainly an eligible person and had a disability, that the delay was not inordinate or inexcusable, and an extension would have no unfair impact on the other beneficiaries. This was because the majority of the estate (being a property) remained intact, as the income of the property was held on trust to provide for the applicant during her lifetime under the Will. Further, it was appropriate to grant an extension as the applicant was, due to her disability and mental illness, unaware of her rights and was not in a position to give explanation for the delay.

 

What this means for you

If you think you might be eligible to make a family provision claim to challenge a Will, but are concerned about the amount of time that has passed, our estate dispute specialists in the Private Wealth Law team at Chamberlains can assist you.