Q: My husband of 16 years left me the right of occupancy to his home when he passed away three -and-a-half years ago, with his son inheriting the property on my death. The property is held in trust in my name and that of my stepson and I pay all the expenses on the property.
My stepson no longer talks or communicates with me and is just waiting for me to go. Is it too late to explore my options regarding contesting the will? I put all my savings into the property when my husband was alive and he thought he was looking after both our interests in his will.
My stepson and myself were executors of the will but he took many months to sign for the will to go to probate. I was completely unaware of any rights I may have had at the time to contest.
A: Each state and territory in Australia has legislation enabling a will or the rules of intestacy to be challenged and whilst these laws differ slightly, the overall common idea is to provide certain eligible claimants with the right to be heard on the question of whether the will or the intestacy rules are fair to them given their circumstances at the time the death occurred.
Obviously the right to claim cannot exist forever and so certain time limits are imposed on potential claimants to give notice of their intention to claim and ultimately to commence proceedings.
In Queensland, for example, notice of an intention to claim has to be given to the executor or administrator within 6 months from the date of death, while in other states notice may be given within, say, 12 months of the date of a grant of probate or administration being issued by the court. It is important to check which time limit applies in your case.
You say that probate was delayed and so you may still be in time to give notice of a claim depending on which state or territory rules apply but I’m feeling from the facts you have put forward that three-and-a-half years since the date of death will probably mean that you are out of time.
There are some circumstances whereby the court may grant an extension to the time period for notices to be given but a strong and adequate argument would have to be put forward to obtain leave to apply out of time.
Unfortunately, simply being unaware of your rights will most likely not sway the court. The court will also be cautious if the estate has, in its view, been administered. I suggest you speak to an estate lawyer who may consider all the circumstances more fully.
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