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How long after death can a Will be contested?

How long after death can a Will be contested?

You have 12 months from the date of death to contest the Will. But exceptions may apply if you can show the court you have sufficient cause.

How to contest a Will 12 months AFTER death

To contest a Will a couple of years after the death of the deceased, you need to show the Court that there is sufficient cause to grant you an extension of time to contest the Will.

A recent case in the Supreme Court of New South Wales, Estate of Morris: Grady v Deavin, helps illustrate what the Court will consider as sufficient cause.

In this case the person contesting the Will was a former de facto partner of the deceased and an eligible person under the Succession Act to contest the deceased’s Will. However, her application to contest the Will was filed in the Court nearly two years after the date of death of the deceased. The Court required her to show sufficient cause for an extension of time to contest the deceased’s Will.

The Court stated that the factors that will be taken into account in obtaining an extension of time to contest the Will included:

  • Whether the explanation for the delay was sufficient;
  • Whether any other beneficiaries under the Will would suffer any prejudice because of the delay, excluding the beneficiaries disappointment that their inheritance may be reduced if the claim was successful;
  • Whether there was any unconscionable conduct by the person seeking to contest the Will, or by other beneficiaries or executors; and
  • The strength of the claim to contest the Will.

In these proceedings the person seeking to contest the Will was aware of the death of the deceased and the requirement to contest the Will within twelve months, from the date of death.

However, the Court found that despite her knowledge of the requirement to contest a Will, she was unaware that it was open to her, as a former de facto of the deceased, to contest the Will. In addition, there was a delay in the executor of the Estate providing her with formal notice of her entitlement to contest the Will and as soon as she received this notice, she made her application to the Court.

The Court also found that there was no prejudice to the Estate if the extension of time was granted, there was no unconscionable conduct by the parties and the case to contest the Will was strong.

Based on all these factors, the Court found that there was sufficient cause shown for an extension of time to contest the Will of the deceased. The former de factor partner of the deceased was also successful in contesting the deceased’s Will and received $350,000 from the deceased’s Estate.

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