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NSW Contesting a Will After Probate Granted - Timeline?

Discussion in 'Wills and Estate Planning Law Forum' started by Steve500, 10 March 2015.

  1. Steve500

    Steve500 Well-Known Member

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    Does anyone know the time-line of contesting a will after it has been granted probate? "Date of death" as opposed to "probate being granted of the deceased will" are 2 different things.
    Generally from what I know contesting wills is 12-months after time of death.
    But is that different with time of probate. Is it 6-months, 12-months, or 2-years? And if you contest a will outside of these time-frames, can some mitigating-circumstances be deemed valid? eg. You were overseas and the executors never told you about someone dying and you were a beneficiary on the deceased's will, or if executor of a will refused to give you a copy of the will, when your mentioned in it.
     
  2. Sarah J

    Sarah J Well-Known Member

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    Hi Steve500,

    You can challenge a will in two ways:
    • Setting aside a will because it is invalid or not the final will of the will-maker;
    • Contesting a will because it makes unfair provisions for a stated or potential beneficiary.
    To set aside a will, you can argue: undue influence, made under fraud, forgery of the will, the will-maker lacked mental capacity when making the will or the will is invalid because it is not properly signed and witnessed. Setting aside a will should be made before probate is granted. This is because probate is the court's declaration that the will is valid and final. To do this, you should place a caveat over the deceased's estate so that you are notified when someone tries to apply for probate and you can challenge the probate application. There are limited circumstances when you can set aside probate after it is made (e.g. a later valid will is found). However, this is rare.

    Contesting a will for unfair provisions (family provision application) is governed by the Succession Act 2006 (NSW). You can only make an application if you are an "eligible person" (see section 57). The time limit for a family provision application is 12 months from the date of death (see section 58). You can apply for an time extension. To do this, you will need to apply for (i) court's leave granting a time extension to make a family provision application; and once you have this, (ii) a family provision application. You will need to show sufficient cause why a time extension should be made. This means, you must show: (i) you have a good case and likelihood of succeeding in the family provision application; (ii) you have reasons for delaying the application and (iii) it is just in all the circumstances that a time extension should be granted to you. Court will also consider whether this will unjustly prejudice any third parties (e.g. beneficiaries) in the event the estate has already been distributed.

    This time limit is not different when probate is granted.
     
    Tim W likes this.

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