Contesting a will often comes with strict time limits, so you must act quickly if you intend to make a claim. Before you can make a claim against an estate and contest a will, you need to confirm that you are eligible to do so. We can assist you with this during an initial, free telephone consultation. If you are eligible to make a claim against an estate, you must give formal notice to the executor or administrator of the estate in writing within 6 months of the deceased’s date of death.
Time limits to contest a will
How long do you have to contest a will?
If you are going to contest a will in Queensland, you have 6 months from the date of death to give notice of your intention to claim against an estate. To do this, you need to give formal notice in writing to the executor or administrator of the estate. Even where you have given that notice, you are then required to start court proceedings within 9 months of the deceased’s date of death.
If you do not give notice of your intention to claim against an estate, and/or file proceedings in court within the mentioned timeframes, the executor or administrator can distribute the estate assets to the beneficiaries listed in the will without penalty, leaving you with no assets to claim.
What is the time limit for the executor to distribute the estate?
You can give notice of your intention to claim against an estate after 6 months from the deceased’s date of death – however any estate assets that have been distributed after the 6-month date, but before your notice, are unrecoverable — For example, if you do not give notice until 7 months after the date of death, and the executor has distributed 75% of the estate assets between 6 to 7 months after the date of death, then your claim is limited to the remaining 25% balance of the estate.
If you do not start court proceedings, to claim against an estate, until after the 9 month period, you can still make your claim however it will be up to the court to determine whether it will accept your claim. The court will look at the following:
- The reason for the delay?
- The strength of your claim?
- Have you behaved in a way that the court believes is unfair, immoral, dishonest or corrupt?
- Is there any disadvantage to the beneficiaries if a claim was to proceed?
Why is there a time limit to contest a will?
The time limits are imposed by legislation. This is to try and balance the rights of beneficiaries to receive their inheritance, versus the rights of eligible persons to contest the will if they aren’t properly provided for.
How might it relate to my situation?
The courts do not lightly allow claims started after the time limit has expired. For example, a court dismissed a claim started 9 days late (this was successfully appealed, but at great expense to the estate – meaning the estate was smaller, and fewer funds were available to pay any provision). In another matter, the claim by a wife of the deceased was started only 63 days late, and although the court accepted the delay was only relatively short, the court still refused to allow the claim.
What should I do next?
Call our office and one of our highly experienced Wills and Estate team can talk through your situation and discuss the process and issues of your potential claim.
This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please let us know.
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