15 October 2020

Time limits in contesting a will in NSW



The time to commence proceedings to contest a Will in NSW is usually 12 months from the date of the deceased's death.
Australia Family and Matrimonial
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When you are considering contesting a Will, timing is important. You should be aware that in commencing proceedings in New South Wales to contest a Will, you have 12 months from the date of the deceased's death to bring your claim.

The Court does have power to extend the time limitation under section 58(2) of the Succession Act 2006 (NSW), however the Court must be satisfied that the person bringing the claim can show sufficient cause, or that the parties consent to the application being made out of time.

In determining what constitutes sufficient cause, Justice Hodgson in the case of Lewis v Lewis stated that "sufficient cause must be taken to mean sufficient explanation or sufficient justification or excuse". The Court in its consideration would look at factors such as:

  1. The sufficiency of explanation of delay in making the claim.
  2. Whether there would be any prejudice to beneficiaries if the period was to be extended.
  3. Whether there had been any unconscionable conduct by the plaintiff; and
  4. The strength of the plaintiff's case.

Justice Hallen of the Supreme Court stated in the case of Butler v Morris; Butler (bht NSW Trustee & Guardian) v Morris [2012] NSWSC748 that "ultimately, justice is the paramount consideration in determining whether to extend time for making an application...".

An example of when a Court may allow an out of time application is where someone is genuinely unaware that a person has died. Alternatively, being unaware of the time limits to bring a claim may be a circumstance the Court considers.

In summary, when deciding whether or not to bring an out of time application, you need to be mindful that the Court has a wide discretion in determining whether or not to allow your out of time claim in and in doing so will look at all of the reasons as to why your claim is late.

Another important consideration is that this type of claim will not be determined until the matter reaches the stages of final hearing. Taking a matter to final hearing often takes approximately 12-18 months after the claim has been first filed, and an individual will incur significant legal costs in getting the claim to this stage. It is at this stage of final hearing where the Court will decide whether to allow your out of time claim. This means that you may reach this point, have incurred substantial costs and still not be awarded an extension of time to bring your late application.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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