Wills and Estates: Why you should act quickly to dispute a Will.

There are critical timeframes to consider when you are disputing a Will. If you have been left out of a Will and want to make a claim, it is essential that you are aware of those timeframes and what happens if you run out of time.

What are the timeframes in Queensland to dispute a will?

Queensland and New South Wales have slightly different time frames to other States and Territories when disputing a Will or bringing a claim for further provision. In other jurisdictions, the time frame runs from the Grant of Probate or Letters of Administration date.

In Queensland, the time frame for bringing a claim runs from the date of death. Your application must be lodged with the Court within 9 months of the date of death. However, it’s not as simple as lodging your claim with the Court. In Queensland you must also give the Executor notice within 6 months of the date of death that you intend to bring a claim.

So to recap those first 2 important points:

1. You must notify the Executor of your intention to bring a claim within 6 months of the date of death; and
2. You must then file your Application in Court within 9 months of the date of death.

What is the relevance of the 6-month notice to contest a will?

An Executor who has not received notice of any claim within 6 months of the date of death is free to distribute the estate, free from claim for any wrongdoing for early distribution.

If you do not provide notice but lodge your claim within 9 months, your claim may be defeated because the estate has been validly distributed.

The notice is very important.

What does the notice to contest a will have to say?

The notice needs to be something more than the Executor having a hunch that the claim might be lodged. 

It must be more than an awareness of a person’s possibility of considering a claim.

It is important, therefore, that the notice is in writing. The notice must tell the Executor that there is an intention to bring a claim upon the estate on your behalf. The notice can be given by you or a solicitor acting for you. The notice must say more than you are contemplating bringing a claim – it must say you have the intention to bring a claim.

What if you run out of time to contest a will?

In certain circumstances, you can apply to the Court to have your Application “heard out of time” – that means permission from the Court where you are late to file your application.

There are no guarantees, and each case is different. The circumstances around why the application was filed late will be unique to your personal circumstances. They will impact you differently from how they may impact another person if you are not allowed to run your case.

Some examples where an extension has been granted include:

1. Where parties were negotiating and the limitation period slipped by during the process;
2. Where the Applicant honestly did not know about their rights and the other beneficiaries were not adversely affected by the late claim;
3. Where the delay is short, there are sensible reasons for the delay, and the estate has not yet been distributed;
4. Where the Executor deliberately concealed that the deceased died from potential claimants.

Some examples where an extension has been refused include:

1. Where the Applicant knew that they could bring a claim but failed to do so for a substantial period;
2. The estate has been distributed, so there is nothing to claim;
3. Where the application is out of time and it is likely to fail anyway because of circumstances relevant to the Applicant (i.e. they might have no need for provision, or their behaviour means they should not receive any benefit);
4. There is no reasonable excuse for why the Applicant failed to bring a claim.

One of the most important factors is whether the estate has already been distributed. If there is no estate left to claim, likely, you won’t receive permission to file your application late.

What can you do?

You must act quickly, get proper advice when a person dies, and realise that you have been left out of the Will. If you fail to give notice within 6 months and then file your application without a good reason for the delay, you may forfeit your claim.