Family Provision Claim Time Limits: Why Time Matters More Than You Think
- Justeen Dormer
- 2 days ago
- 7 min read
Family Provision Claims
A 2025 Supreme Court decision shows what happens when someone asks for a share of an estate almost two years late.
In New South Wales you have 12 months from the date of death to make a family provision claim. That is the claim you make when a Will leaves you out, or leaves you far less than you need. Miss that date and your claim is not over. It does get much harder, and a recent case shows how much harder.
How long you have to make a claim
You have 12 months from the date of death. Not from the funeral. Not from the day you found out what was in the Will. Not from the day the executor gets going. Twelve months from the death.
If that date has passed, you can still ask the Court for extra time. The Court can allow a late claim where you show "sufficient cause". That is the law's phrase for a good enough reason. It is not a formality, and you do not get it just for asking.
Can they really do this to me? Being left out of a Will is not always the end of it. Certain family members and dependants can ask the Court for a share of an estate. Children, spouses and de facto partners are all on that list. So are some people who once depended on the deceased. A de facto partner is someone the deceased lived with as a couple, without being married. The law calls them eligible persons, which simply means people who are allowed to bring this kind of claim.
What can I do about it? Get advice, and get it inside the 12 months. That one step protects everything else you might want to do.
What a claim costs you
The money question comes next, so here is the answer. In estate disputes, legal costs are frequently paid out of the estate rather than out of your own pocket. That is a discretion of the Court, and it is not automatic.
There is a catch, and it matters. Costs paid from the estate still reduce what everyone inherits, including you. On a small estate, a fought claim can swallow much of what the fight is about.
A late claim carries one more risk. If the Court refuses to give you extra time, you can be ordered to pay the estate's costs. That is what happened in this case. The claimant ended up owing money and with nothing to show for it.
We offer a free first conversation. Finding out where you stand costs you nothing.
What happened in this case
A man died in December 2022 without a Will. The law calls that dying intestate. His two adult sons stood to inherit what he left.
His former partner had lived with him since about 2012. In 2018 they bought a house together, using money he had inherited from his parents. The relationship ended in early 2019, and she moved out by 2020. He died about two years after that.
In late 2023 one of the sons went to Court for the estate. He argued that most of her share really belonged to his father. His father had paid for most of the house. She took no part in the case. The solicitors made extensive efforts to find her and tell her about it. The Court found she had been properly served, meaning told about the case in the way the rules require. In 2024 it ruled that the estate owned about 82 per cent of the house and she owned about 18 per cent. She was ordered to pay the legal costs as well.
She came back into the case in February 2025. She then waited another six months before asking the Court to set that ruling aside. As an alternative, she also asked for extra time to bring a family provision claim. By then the 12 month deadline had passed more than 20 months earlier.
Why the Court refused to extend time
The Court said no. Its reasons read like a checklist of everything that goes wrong when a claim is left too long.
The delay was long and only partly explained. The deadline had passed in December 2023. She did not ask for extra time until August 2025. She said she had been in hospital overseas. Her medical evidence covered about six weeks, not the whole period. It also did not show that she had been unable to instruct a lawyer. The Court found she had probably known about the case all along.
There was no real claim on the table. She never filed a proper family provision application. She raised it inside another application, as a second option. She did not say which group of eligible persons she belonged to, what she needed, or which property she wanted it from.
Her eligibility was doubtful. A de facto partner is automatically eligible only if the relationship existed at the date of death. She had moved out about two years before he died. She might have qualified another way, as someone who had once lived with him and depended on him. Her evidence of that dependency was thin.
Her evidence could not be tested. She was living overseas by the time of the hearing, and had made no arrangements to give evidence by video link. Her account of events did not match the paper trail either. Untested memories of private conversations carry far less weight than documents.
The estate had moved on. By 2025 the sons had a final ruling. They had spent about $44,000 on legal and service costs. They had also begun to deal with the estate on the basis that the house dispute was settled.
What every month of delay costs you
Delay does more than use up time. It works against you in three separate ways.
It makes the delay harder to explain. The Court wants an account of the whole period, not part of it. Six weeks of medical evidence does not explain 20 months of silence.
It makes your evidence weaker. Memories fade. Witnesses move away or die. And the one person who could answer your account of what was promised is the person who has died.
It does more damage to the other side. An estate that has already been shared out cannot always be unwound. Neither can a property dispute that a Court has already decided. The beneficiaries, the people who inherit, are the ones who pay for it. They acted in good faith, and the Court takes that seriously.
Can a late claim still work
Yes, sometimes. Section 58 of the Succession Act lets the Court extend time where sufficient cause is shown. Late claims do succeed, and they succeed most often where the delay is short, fully explained, and the estate is still intact.
A late claim is a bit like reaching the airport after the gate has closed. Sometimes the staff will still get you on the flight. But you have to explain where you were, the plane may already have gone, and nobody owes you a seat.
So if you are past 12 months, do not assume you have no hope. Two things then matter as much as the facts of your case. How well you can explain the delay. And how clearly your legal position is set out. Both are much easier with help than alone.
What to do now
Write down the date of death. Your deadline runs from that day, and nothing else.
Keep everything. Texts, emails, letters, photographs, bank records, and any note in the deceased's handwriting. Houses get emptied and phones get wiped within a fortnight of a death. Once those records are gone, they are gone.
Write down what you remember now. What was said to you, when, and who else heard it. Notes made early carry more weight than memories recalled two years later.
Do not wait for the estate to be sorted out. The 12 months runs whether or not anyone has applied to the Court, and whether or not the family is talking to you.
Do not sign anything about the estate before you get advice. That includes a receipt, a family agreement about who gets what, or a release, which is a document giving up your right to claim.
Call us even if you are not sure you want to claim. Knowing your deadline costs you nothing.
If more than 12 months has already passed, call now. Every further month counts against you.
If you are the executor of an estate, the person appointed to deal with it, and someone has threatened a late claim, read this instead.
How we can help
You do not need to know whether you are still in time before you call us. Working that out is our job.
The first conversation is free. We can tell you whether the 12 months has run, and what date it runs from. We can tell you whether you are an eligible person. If the 12 months has passed, we can tell you how strong an application for extra time would be. We can also tell you what the Court will want explained. If you are still in time, we can get your claim started before the date passes.
In estate disputes, legal costs are frequently paid out of the estate rather than out of your own pocket. That is a discretion of the Court and it is not automatic. Costs paid from the estate also reduce what everyone inherits, including you. A late claim carries a further risk. If the Court refuses extra time, you can be ordered to pay the estate's costs.
Most family provision claims in New South Wales settle at a mediation. That is a meeting where both sides try to reach an agreement without a hearing. We will also tell you if we think a claim is not worth running. A weak claim, brought late, can leave you worse off than doing nothing.
Call us on 1800 571 113. If someone in your family has died in the last 12 months and you think you have been left out, call now rather than later. Every month of delay makes the claim harder to run.
We also act for executors and beneficiaries who are defending claims. We run a conflict check before we advise anyone. Please call us rather than sending the details of your matter through the website.
Disclaimer
This article is general information about the law of New South Wales as at 4 September 2026. It is not legal advice, and reading it does not create a solicitor and client relationship with Dormer Stanhope. It does not take your circumstances into account, and the law in other States and Territories differs. The law also changes. If you think you may have a family provision claim, or more than 12 months has already passed since a death, speak to a solicitor about your own position.
