How long do you have to Contest A Will – Can you contest a Will two years after a death?
You have twelve months from the date of death of the deceased to contest their Will. This means that within twelve months of the death of the deceased, you need to file an Application in the Court to contest the Will.
However, you are able to contest a Will outside of this twelve-month period, if you can show the Court that there is sufficient cause for you not contesting the Will during the twelve month time period.
How do you Contest a Will a couple of years after a 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.
Graeme Heckenberg is an expert Wills & Estates lawyer and will be able to guide you advise you in the event that you wish to Contest a Will, even if you are outside the time period to contest the Will.
First 20 minute consultation is free, when enquiring as to whether you have a case to contest a will.
Call today for a an appointment closer to home on 9221 0341
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