Is there a time limit on family provision claims?

In New South Wales, family provision claims are a legal mechanism for individuals who believe they have not been adequately provided for in a deceased person's Will or Estate. These claims are governed by the Succession Act 2006 (NSW), which sets out specific timeframes and conditions for making such claims.

Time Limit for Making a Family Provision Claim

Under section 58(2) of the Succession Act 2006 (NSW), an application for a family provision order must be made within 12 months from the date of the deceased's death. This means a summons for family provision must be lodged with the Court within the allowable time. Having a deadline ensures that the estate can be administered and distributed in a timely manner, providing certainty to the beneficiaries and the executor.

Exceptions to the Timeframe

Recent changes to the Succession Act 2006 (NSW) permit an extension to the 12-month period if all the parties agree to it. In practice this is rare as it is unusual for a person defending a claim to allow the person lodging it more time to do so.

While the 12-month period is the prescribed timeframe, the Court has the discretion to allow a claim to be made after this period if there is sufficient cause for the delay. However, obtaining an extension is not guaranteed and is subject to the Court's discretion based on an assessment of the circumstances surrounding the delay.

Factors Considered for Extension

When deciding whether to grant an extension, the court may consider several factors, including:

• Reason for the Delay: The applicant must provide a satisfactory explanation for why the claim was not made within the prescribed timeframe.
• Merits of the Claim: The court will assess whether the claim has merit and whether the applicant has a strong case that they have not been adequately provided for.
• Conduct of the Applicant: The applicant's conduct, both before and after the deceased's death, may be considered.
• Impact on the Estate: The court will consider the potential impact of the late claim on the Estate, beneficiaries and other asset holders affected by the claim.
• How long out of time is the application: The Court will consider how overdue the application is. If a claim is only made days after the 12-month deadline has passed, then the Court will usually grant some grace period depending on the circumstances.
• If the client had negligent legal representation: If the claim was not made within time due to the negligence of a lawyer, then the Court may allow the claim, but this is subject to the previous factors.

Importance of Timely Action

Given the strict timeframe and the uncertainty of obtaining an extension, it is crucial for potential claimants to act promptly. Seeking legal advice early can help ensure that all necessary steps are taken within the required period, and it can provide guidance on the likelihood of success if an extension is needed.

Conclusion

In summary, while there is a 12-month time limit for making family provision claims in New South Wales, exceptions can be made under certain circumstances. However, these exceptions are not easily granted, and the onus is on the applicant to demonstrate sufficient cause for the delay. It is advisable for individuals who believe they have a claim to seek legal advice as soon as possible to protect their rights and interests.

ONE MORE THING!

Even though a claimant has 12 months to file their claim this doesn’t automatically stop the Executor from administering and distributing the Estate before then. An Executor has protection from the Court if they wait 6 months from date of death before they distribute the Estate (if they have filed a notice to distribute the Estate with the Supreme Court and waited 30 days from filing the notice). While this doesn’t prevent a subsequent claim it may mean the money has already been distributed to the beneficiaries. They may go and spend it before a Court can order it paid back. However, if an eligible beneficiary puts the Executor on notice of their intention to make a claim then the Executor should not distribute until the claim is resolved.

Ultimately, we recommend anyone considering making a claim gets legal advice as quickly as possible to prevent missing out.

Contact us for a free thirty-minute consultation with a Will dispute lawyer.

Any information on this website is general in nature and should not be taken as personal legal advice. We recommend that you speak to a lawyer about your personal circumstances.

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