Are there any time limits for making an application to contest an Australian Will?

Preliminary Note: This FAQ focuses on the applicable time limits [by jurisdiction] when you are considering contesting an Australian Will.

The legal grounds upon which you can contest a Will are a different matter which is only dealt with partially here.

Stay tuned for a fuller discussion on legal grounds for contesting a Will in an upcoming FAQ.

Background ➲ Time Limits Vary

Timing is vital to any legal matter, but it is particularly important that you seek legal advice quickly if you are considering contesting a Will.

In a practical sense, any challenge to a Will is going to be much more difficult where the executor (person carrying out the instructions of a Will) has already started to make distributions from the estate to the beneficiaries named in the Will, after being declared valid by the Court (i.e. probate has been granted).

As such, the relevant time limit to contest a Will depends on whether you are looking to challenge the Will before or after a Grant of Probate.

In general, you can contest a Will on two grounds:

1️⃣ The validity of a Will

➲ The contest should be acted upon quickly, preferably before a Grant of Probate, though Wills can still be contested and rectified after a Grant of Probate.

2️⃣ The contents of a Will

Example: For a failure of family provision or miscarriage of intentions

➲ The contest can be made after a Grant of Probate, though you should try to act as soon as possible, before the executor has started to make distributions from the estate.

Unfortunately, it can be hard to know whether you have legal grounds to challenge a Will when you haven't been provided with the opportunity to examine the Will.

A Will becomes publicly accessible upon Grant of Probate.

As detailed in our FAQ: Who is entitled to be provided with a copy of the Will and Probate Documents? most jurisdictions (except ACT, SA & WA) provide a statutory right to access a Will before a Grant of Probate, if you fall into an eligible class of persons in relation to the testator (the person who made the Will).

For everyone else, you are at the mercy of the executor's discretion; the executor could choose to send you a copy of the Will prior to a Grant of Probate, but they do not have to.

Contests Prior to a Grant of Probate

In one sentence: Check the Online Notices for an Application for Grant of Probate.

Who is this for?

If you do not have access to a copy of the Will or you would like to contest the validity of a Will.

Lack of access to the Will could be a significant problem, especially if you think that a Will may not be valid (for reasons such as a lack of testamentary capacity, undue influence or fraud).

Fortunately, in most states / territories, before an application for probate can be made, the executor must provide public Notice of Intention to Apply for Grant of Probate.

Notices of Intention to Apply for Grant of Probate are published on the sites linked below; please note that public notices are not legally required in South Australia and Western Australia. If, for some reason, you did not know who to contact with regards to asking for a copy of the will, you may find the relevant details from the notices.

Where to Find Notice of Intention to Apply for Probate

State Website Link
ACT Link
NSW Link
NT Link
Qld Link
SA Notice Not Required
Tas Link
Vic Link
WA Notice Not Required

To Caveat or not to Caveat?

Before a Will has been granted probate, it is possible to lodge something called a caveat on the Grant of Probate to prevent the Court from granting a Will to probate.

However, a caveat may not be lodged by just any person, despite what is suggested by legislation (see the table below).

Based solely on the legislation, it appears that in all states except the ACT and Queensland, any person may lodge a caveat.

In reality, this is NOT the case.

There are established cases which provide that anyone applying for a caveat must have both:

1️⃣ An interest in the estate (standing); as well as

2️⃣ Grounds to justify the application.

If you lodge a caveat in the absence of either of the above, you may be liable for Court costs with regards to the matter.

All that said, should you have the relevant standing, and appropriate grounds for contest, lodging a caveat represents the earliest time from which you might contest a Will.

By acting before the Grant of Probate, you minimise the risk of the executor having distributed some part of the estate already.

If you think you may be in a position to lodge a caveat on a Grant of Probate, we strongly advise you to contact us in regards to the matter, so that you do not run the risk of being liable for unnecessary costs.

Who can lodge a caveat? (Misleading)

State Legislation Provision Who? Link
ACT Court Procedure Rules 2006 r 3066 "a person claiming to have an interest in an estate" Link
NSW Probate and Administration Act 1898 s 144 "any person" Link
NT Administration and Probate Act 1969 s 44 "a person" Link
Qld Uniform Civil Procedure Rules 1999 r 624 "a person claiming to have an interest in an estate" Link
SA Administration and Probate Act 1919 s 26 No Qualification Link
Tas Probate Rules 2017 r 78 "a person" Link
Vic Administration and Probate Act 1958 s 58 "any person" Link
WA Administration Act 1903 s 63 "any person" Link

Contests After a Grant of Probate

In one sentence: The time limit applicable to you will depend on your legal ground for challenge.

Family Provision Obligations

A Will may be contested for a failure to provide for the "proper maintenance, education or advancement in life" of an eligible family member.

(More details will be provided in the separate FAQ on Grounds for Contest, but for now, think either spouse, de facto partner, children or other dependants only).

This is a challenge to the content of the Will (not the validity of the Will), therefore you do not have to try to contest the Will before a Grant of Probate, though you should nonetheless move quickly to minimise the chance that you are frustrated by distributions of the estate.

The time limits for a family provision contest are listed by state / territory below.

Note: In New South Wales and Queensland, the clock starts ticking upon the death of the testator, and not upon Grant of Probate as in every other jurisdiction.

Family Provision Time Limits by Jurisdiction

State Legislation Provision Time Limit Link
ACT Family Provision Act 1969 s 9 Within 6 Months of Grant of Probate Link
NSW Succession Act 2006 s 58 Within 12 Months of Death of Testator Link
NT Family Provision Act 1970 s 9 Within 12 Months of Grant of Probate Link
Qld Succession Act 1981 s 41(8) Within 9 Months of Death of Testator Link
SA Inheritance (Family Provision) Act 1972 s 8 Within 6 Months of Grant of Probate Link
Tas Testator's Family Maintenance Act 1912 s 11 Within 3 Months of Grant of Probate Link
Vic Administration and Probate Act 1958 s 99 Within 6 Months of Grant of Probate Link
WA Family Provision Act 1972 s 7(2) Within 6 Months of Grant of Probate Link

In each state/territory, the Court, in its discretion, may extend the time in which a family provision contest can be brought, though the applicant for an extension of time must show good reasons for why a Court should do so.

Misinterpretation of Testator's Intentions and Rectification

In each state/territory, the Court has discretion to rectify a Will, where the Will does not carry out the testator's intentions.

In all jurisdictions except the ACT and SA, the Court may only exercise its discretion where the Will does not carry out the testator's intentions because either:

❌ A clerical error was made; or

❌ The words of the Will misinterpret the intentions of the testator.

In the ACT and SA, the discretion of the Court may be exercised in any situation in which the Will fails to carry out the intentions of the testator.

Further in regards to the ACT, if the executor for the estate is the state Public Trustee and Guardian, the limitation period to rectify a Will starts from when the Public Trustee and Guardian gives public notice (that is, before a Grant of Probate has been made).

Otherwise, the time limit starts from the Grant of Probate.

Rectification Time Limits by Jurisdiction

State Legislation Provision Time Limit Link
ACT Wills Act 1968 s 12A Within 6 Months of Grant of Probate / (for Public Trustee and Guardian) Notice by Public Trustee Link
NSW Succession Act 2006 s 27 Within 12 Months of Death of Testator Link
NT Wills Act 2000 s 27 Within 6 Months of Death of Testator Link
Qld Succession Act 1981 s 33 Within 6 Months of Death of Testator Link
SA Wills Act 1936 s 25AA Within 6 Months of Grant of Probate Link
Tas Wills Act 2008 s 42 Within 3 Months of Death of Testator Link
Vic Wills Act 1997 s 31 Within 6 Months of Grant of Probate Link
WA Wills Act 1970 s 50 Within 6 Months of Death of Testator Link

As with Family Provision contests above, the Court may, in its discretion, allow challenges past the time limits specified above, though again, the party applying for the extension must make a good case as to why an extension should be granted.

In this situation, it is highly relevant whether the executor has started to distribute the estate, as the Court may take this into account in considering whether to grant an extension.

Credits:

This FAQ was prepared by Suk Jae Chung | Practical Legal Training (PLT) Placement, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.