How Long Does Someone Have to Make a Claim on an Estate?

In New South Wales, an eligible person wanting to make a family provision claim must do so within 12 months of the date of death. Exceptions are allowed, but there has to be sufficient cause for a claim to be made after 12 months.

An executor is expected to administer and distribute an estate without unnecessary delay - in NSW, the expectation is for an estate to be distributed within 12 months of the date of death. To account for the possibility of a family provision claim being made, executors usually only start distributing an estate after six months.

What is a family provision claim?

A family provision claim is an application made to the Supreme Court of NSW by someone who feels they were left out of a will without good reason, or believes that what was left to them is insufficient. Family provision claims can only be made by ‘eligible persons’, as defined by section 57 of the Succession Act 2006 (NSW).

Who must be notified of a family provision claim?

The executor - and it is recommended they be notified immediately. Ideally there would be two notifications: the first advising them of the intention to bring a family provision claim, and the second advising them that the application has been made. This allows the distribution of the estate to be stopped while the claim is being considered.

When challenging the validity of a will, a probate caveat can be filed with the court to prevent the executor from administering the estate. But a probate caveat is not used for family provision claims, so notifying the executor is the only way to delay the distribution of the estate.

What happens if 12 months have already passed?

Late applications for a family provision claim can only be considered by the Supreme Court. The executor should still be consulted about the intention to make a late application.

The court considers two things before deciding whether to allow a late application:

1. Does the applicant have sufficient reason for making a late application, or do all parties agree to the late application; and
2. Have all the assets of the estate already been distributed, and would allowing the late application unfairly prejudice other beneficiaries.

An example of sufficient reason might be that the claimant was unaware - and had not been notified - of the testator’s death. And while all parties can agree to a late application after consulting with the executor, the final decision still rests with the Supreme Court.

Claims on an estate are neither trivial nor simple, which is why you should always seek professional legal advice before proceeding - whether you are the person wanting to make a family provision claim, or the executor of an estate that a claim is being made against.