Time limits to contest a will
Time limits under succession law on family provision limit when you can contest a will. Most states and territories family provision legislation provide for some time limit, often the period is six months but it can vary.
The time period might start from the date of death or from when probate is granted. If you are thinking of challenging a deceased person’s will, and you are an eligible person under the law, it is important to be mindful of the time limit. To find out when see the legislation on family provision or testator’s family maintenance in this table, or consult a local solicitor.
But what if the time period has passed? Most legislation provides the Court with a discretion to extend the time within which to make an application, but it is not automatic and the Court’s permission to file must be sought first. Legal assistance is essential.
In Western Australia a farmer’s son sought an extension of time from the Court of almost seven years in which to challenge the will of his deceased father. His father had died in 2008, and probate granted later that year.
His mother was the executor and sole beneficiary of the estate, estimated at the time of death at around $7 million. The father had not left any provision in his will for the son nor his sister. The son lodged an application to challenge the deceased’s will for provision out of the deceased’s estate. Such application is governed by the Family Provision Act 1972 (WA).
Time limit in Western Australia
Family Provision legislation in Western Australia provides for a six month time limit within which to contest a will. The time starts ticking from when a grant of probate has been issued: section 7 of the Family Provision Act 1972 (WA): ‘who can apply for provision from deceased’s estate’. That is, the time from when the administrator is entitled to administer the estate of the deceased in Western Australia.
Can the time limit be extended?
If the six months has passed, the Court’s permission to lodge an application must be obtained first before actually going ahead. As noted above, the legislation provides the Court with a discretion to extend the time to apply, but to do so the Court must be satisfied that the justice of the case requires it.
In this case the Court noted the various legal principles on exercising the discretion which have been developed and applied from case law. They include:
- considering whether there have been any negotiations with the defendant;
- the onus is on the plaintiff to establish sufficient grounds for why they are not within the general rule and depriving those who are protected by it out of its benefits;
- whether or not the estate has been distributed before a claim was made or notified;
- whether a refusal to extend time would leave the applicant (plaintiff) without redress against anybody;
- consider how promptly and in what circumstances the plaintiff has sought an extention of time;
- whether solicitors had failed to act promptly, so the applicant had to drive the matter.
What is in the interests of justice
The Master deciding the application noted from higher authority that while such principles are a guide, they are not a code. He said the important thing was, citing the Court of Appeal (WA), that the ultimate question was what was in the interests of justice.
The Master repeated that in his view, on the evidence, the plaintiff’s claim was arguable, that there was no doubt he had an arguable case. However, in weighing all the matters, it was the length of the delay and the failure of the plaintiff to adequately explain that delay which were overwhelming factors against granting an extension of time.
The Court said that despite the fact the plaintiff potentially had a claim, when all the factors were taken together, it was concluded it was not in the interest of justice to grant the extension of time sought, and the application was dismissed.
Wheatley v Wheatley  WASC 248
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Image: Wheatfield, west coast of South Australia, B Stead, 2017