Can you contest a will after probate is granted in New South Wales?

No law in NSW precludes you from filing with the Court an application for a family provision order (“contesting a will”) after probate (or letters of administration) has been granted.

However, the question you should be asking is not ‘Can I contest a will after probate is granted in NSW?’, rather, ‘Is there a time after death within which an application for a family provision order must be filed with the Court?’. The answer to this question is, ’Yes, within 12 months of death’. Accordingly, provided you file your application for a family provision order with the Court within the said 12 months, it does not matter whether probate has been granted or not.

What is probate?

A person named as executor in a will may apply to the Court for a grant of authority to administer the will; this is called a grant of probate. If there is no named executor living, or there is no will, then the authority applied for is call a grant of letters of administration.

Who can contest a will after probate?

As stated earlier, in determining who may contest a will, it does not matter whether probate has been granted.

Eligibility to contest a will depends on whether you are an ‘eligible person’, and if you are, whether you have received adequate and proper provision from the estate. ‘Eligible person’ include a spouse, de facto spouse, former spouse, child , a grandchild who was dependent on the deceased at any particular time or a member of the deceased’s household, any person who was dependent on the deceased and a member of their household, any person with whom the deceased was living in a close personal relationship at the time of their death.

What is the time limit for contesting a will after probate?

The time limit is the same whether you are contesting a will before or after probate; it is within 12 months of the death.

Can the time limit for contesting a will be extended?

The time limit can be extended in two situations:

1. if the executor or administrator of the estate consents to it being extended; and
2. if you convince the Court that there is ‘sufficient cause’ to allow you to file your application out of time.

Certain policy reasons and considerations underlie the time constraint and the “sufficient cause” exception. These include the need to ensure that applications for family provision do not unduly interfere with the prompt administration of a deceased’s estate.

In most cases, the claimant is aware of the death and the (allegedly) insufficient provision.

Only occasionally will there be a good excuse for not making a claim within the time limit. Experience shows that a deceased’s relatives usually pay uncommonly close attention to such matters.

This is not to say that there will not be times when, for legitimate reasons, a claimant is quite unaware of the death or of their legal right to contest the will and therefore is unable to comply with the 12-month time limitation. In those circumstances, the Court may well be convinced that there is ‘sufficient cause’ to allow the application out of time.

The wrap

If you think you have a right to contest the will, you delay taking legal action at your peril. If you leave it too long, you may lose the right to contest the will.

With our knowledge and experience dealing with contested claims, we can usually be a useful sounding board for people deciding what to do, provided we have enough information about the estate and you.

In any event, if you have any questions, please do not hesitate to contact us.