Left out of a will? Beware of the time limits for making a claim

Left out of a will? Beware of the time limits for making a claim

In an earlier news blog we talked about an eligible person making a claim for further provision against a deceased’s estate.  An eligible person would usually be the deceased’s spouse, de facto, natural child or de facto child, or a person who has been financially dependent on the deceased. It is very important to consider the strict time limits by which action must be taken.

Written notice must be given to the executor within 6 months from the date of death:

Written notice advising that you intend to make a claim must be given to the estate’s executor within 6 months from the date of death.

You should be certain that the executor has received that written notice, so it's therefore best sent by registered post. An email attaching the notice should also be sent, if possible.

Meeting the initial 6 months deadline for giving written notice is vital. If the estate’s assets are uncomplicated and simple to transfer, or convert into cash, then the proceeds could be distributed to the beneficiaries within the first 6 months, making it almost impossible for any of the proceeds to be recouped to meet a subsequent claim against the estate.

The claim must be filed with the court within 9 months from the date of death:

Once written notice has been given, it's rare for an intended claim to be settled within the initial 6 months period.

Consequently, the claim must be commenced in court within 9 months from the date of death.

Should that 9 months deadline be missed, it is possible in some cases, to apply for an extension of time.  However, that extension is at the court’s discretion.

When an application for an extension of time is made, the court will consider various factors like the reason for the delay, whether the claimant is engaged in any unconscionable conduct, and whether the estate’s proceeds have already been distributed.

If you think you may have a claim then it is important not to delay in contacting us, so that planning and tactics can be closely looked at, and your interests protected.

Phone us for an obligation free initial consultation. 

Back to Articles