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Stevens Law - Lawyers Adelaide

Strict time limits apply to challenges to Wills. Act quickly.


In a previous blog we broke claims for provision from Wills down to the two basic tests as described by the High Court in Singer v Berghouse. In this blog we look at the basic mechanics of a claim and some strategic options available to you to ensure you are in the strongest position possible with respect to your claim for provision. This blog focuses only on challenging a Will for further provision (on the basis that you have been treated unfairly in the Will). This blog does not cover claims to challenge a Will on the basis of its validity, for instance if the testator lacked mental or testamentary capacity or the will was otherwise procured by undue influence or similar.


You probably have picked up from talking to people and reading on the internet that a claim for provision must be brought within six months of the grant of probate. That is entirely correct, but the oversimplification of the issue sometimes causes problems. People who are considering challenging a will or claiming for provision from a Will often rely on the assumption that they need only make their claim before six months from the grant of probate and then do nothing. In the real world, however, the way estates are administered means the bold statement of claiming up to six months from the grant of probate is a bit unhelpful. In this blog we look at some real world issues and point out why it is important to speak with your lawyer at the earliest opportunity.


What if no grant of probate is applied for? When does the six months run from?


The six months to challenge the Will runs only from the actual date of grant of probate. You cannot file your claim before the grant because the cause of action has not strictly come into existence. Probate is the process by which a Will is given validity. The word probate comes from the Latin word probatum which means to prove something. Accordingly, only after probate has been granted does there exist a valid, proven Will that you can claim from which you can claim further provision.


If you file your claim before the grant of probate it will fail and you will quite likely be liable for the costs of the action.


Estates can sometimes be administered without a grant of probate. Whether or not that is appropriate depends on the assets in the estate and the individual requirements of the holders of those assets. For instance, some banks will allow the release of the deceased’s funds to the executor without a grant of probate if certain criteria are met. If this occurs and you have not commenced your claim or made it known to the executor you will be challenging for provision and the executor distributes the estate you will not be able to make a claim and will get no further provision from the estate or the Will - even though six months from the grant of probate has not passed.


How do I notify the executor of my claim?


The Inheritance (Family Provision) Act says that an administrator who distributes an estate without notice of any claim for provision (or any claim generally) will not be liable in the event a claim is made after distribution. What that means is that if you are thinking about making a claim for provision you need to act quickly before distribution of the estate takes place. You also need to be mindful that distribution could occur without a grant of probate and before your six months to make a claim commences to run.


For a notice to be valid, strict criteria from s14 of the Inheritance (Family Provision) Act need to be satisfied. A lawyer would ordinarily draft the notice, but in short, the criteria for a valid notice are that it is in writing and signed. It is very important to note that a notice is only valid for three months. After it lapses the administrator can distribute the estate and will not be liable to account to you for your claim for provision.


In some situations, it is possible that notice is provided to the executor and that the notice lapses before a grant of probate is made, or in circumstances where the executor does not ever make application for probate. In that case, the cause of action to make a claim for further provision. This means that after you give your notice, if the executor allows the three months to pass without applying for probate that you can’t actually apply to the Court for provision. In these situations you really need to speak to a lawyer.


Some of the possible solutions lawyers use to resolve these disputes are informal conferences, mediation and negotiated settlements which are often recorded in a document called a Deed of Family Arrangement.


What if I don’t know who the executor is?


Sometimes you might not know whether there is a Will at all or if there is, who the executor(s) might be. In this situation you cannot give notice to the executor of your claim in accordance with s14 of the Inheritance (Family Provision) Act because you do not know who the executor is. As discussed above, if there is no grant of probate then your six months in which to claim provision has not begun to run. This situation vreates potential difficulties but it is not that unusual.


One of the strategies we use to protect our client’s interests in this situation is to lodge a Caveat against a grant of probate (if there is a will) or administration (if there is no will). This means that our client will receive notice if someone applies for a grant of probate or administration. We then get to know to whom the notice of claim needs to be sent. This approach also prevents the chance of someone obtaining a grant of probate or administration and the six months in which you can bring your claim passing without you knowing about it. It also prevents the other main risk which is that of an executor receiving a grant of probate and proceeding to immediately distribute the estate before you have had a chance to put them on notice of your claim. If this happens, the distribution of the estate will not be challenged and you will not succeed in a claim against the executor(s).


It is also often necessary in this situation to remove the caveat against the grant of probate or administration because, as set out above, the ability to make a claim for provision by way of challenge to the will only begins after the will is proven. In this way, our client’s best interests are protected and their options kept open as best as can be.


Because there are always technical issues and risks in legal matters we do recommend speaking to a lawyer early rather than just assuming you can wait for a grant of probate and then have six months to bring your claim.


We offer a free initial discussion to appraise the prospects of a claim for provision and are prepared to run claims for provision and challenges to Wills on a no win no fee basis. There’s nothing to lose in asking.

08 8470 0313