Estranged from a parent, claim out of time: has a will contest for a family provision any chance of success?

Eligibility to lodge a family provision claim, where a person feels they have not been adequately provided for from an estate, is limited to some key groups, including children of a deceased person. This means that an estranged adult child who has lost contact with their parent is eligible to contest a Will. However, it does not necessarily mean an application will be successful.

In a case involving estrangement, the Courts will need to go beyond the issues of eligibility and the financial position of the applicant and consider matters such as who was responsible for the estrangement, if there were any efforts to repair the relationship, and if so, by whom. An added complication can be that strict time limits apply to making a family provision claim.

This blog explores this latter aspect in the context of an estranged adult child's expectations of a successful family provision claim.

Time limits to bring a family provision claim against an estate

Anyone considering contesting a Will by making a family provision claim needs to be aware that strict time limits apply within which their application must be made.

Each jurisdiction has its own legislative processes and timeframes. In some cases, the time limits run from the date of death, while others run from the date of probate or letters of administration.

In Tasmania, there are just three months to make an application from the date of the grant of probate or letters of administration, whereas it is 12 months in the Northern Territory. In Victoria, as well as South Australia, Western Australia and the Australian Capital Territory, an application must be made within six months from the date of the grant of probate or when the letters of administration were made. 

In Queensland and New South Wales, an application must be made within nine months or 12 months, respectively, from the date of the deceased's death.

Failure to observe these limits can mean the right of action is lost completely.

In the illustrated case below, heard in Victoria's Supreme Court, a daughter sought to contest her late mother's Will outside of the accepted timeframe. Despite this, she was granted an extension to the time limit, allowing her to gain a share of her mother's estate subsequently.

Illustrative Case: Re Monument; Monument v Monument (2022) VSC 205

In this case, the Court had to determine whether to use its discretionary power to grant an extension to the time limit normally applicable to a family provision case. The applicant was an adult daughter of the deceased whose claim was out of time.

The deceased died in September 2018. The main point of contention in the mother's Will was that she left the family home to just one of her children though the Will included a paragraph explaining her decision.

Probate was first granted in May 2019. The daughter's application was filed 55 days out of time, but prior to the application being made, the applicant had written to her sister, the defendant, in December 2018, giving notice that she would be contesting their mother's Will as well as expressing her wish to participate in a mediation process to minimise legal costs without the need to issue proceedings.

The Court decided to grant an extension to the time limit to allow the daughter to make her family provision claim. The reasons were broadly as follows:

• the delay was not lengthy and had come about because the claimant was attempting to negotiate a settlement with no prejudice to others as a result of the delay;
• the applicant was thought to have a strong case as the mother had been an alcoholic and had subjected the applicant to abuse and neglect. This resulted in the applicant leaving the family home at aged 17;
• the estrangement could be viewed as periods of separation in the context of the deceased's failure to fulfil her parental duty. The daughter was a victim of abuse and suffered the effects of her mother's moral failings. A 'wise and just testator', finding themselves in the position of the deceased, would have viewed it as their moral duty to make adequate provision for the proper maintenance and support of the applicant.

The Court found that the interests of justice would be best served by granting an extension of time. Regarding the claim itself, it was determined that adequate provision had not been made for the claimant's daughter, and the Court ordered that she receive 50% of the net proceeds of the estate.

What does it mean?

A claim out of time is not necessarily impossible. All jurisdictions allow an extension at the Court's discretion, but a potential applicant should not count on a Court exercising this discretion. Whether a Court is willing to do so will depend on a number of factors, including:

• the overall merits of the case;
• whether there is any prejudice to the other beneficiaries of the estate;
• the reasons for the delay; and
• whether the estate has been distributed.

The Court's discretion to grant an extension to the time limit is not confined to a rigid set of rules but rather requires a balancing of the statutory requirements and the interests of justice. This may involve an obligation for parents to provide for their children even where there is an apparent estrangement. It is possible that certain circumstances may arise where the Court upholds the exclusion of a child from a share of a parental estate if, for instance, the estrangement is one that is initiated and maintained solely by the child. However, it is likely that in most other circumstances, some provision from the estate will be made.

Contact our Will Contest Lawyers based in Sydney, NSW

At Szabo & Associates Solicitors, we have many years of experience advising on all aspects of Wills. If you require assistance with any part of preparing or contesting a Will, please contact us on 02 9281 5088 or complete the online contact form.