You discover your parent’s will, and you’re not in it. Or you’re left far less than you expected. Or you realise a vulnerable family member has been excluded entirely.
Your first question: how long do I have to do something about this?
The answer isn’t simple, because there is no single national deadline. What matters is your state, the type of claim you’re making, and when the clock started running. And most people don’t realise how short the window can be.
Key Takeaways
- No national deadline exists, time limits to contest a will differ by state and territory
- Family provision claims are time-limited, most states impose strict deadlines, often 12 months from death
- The clock usually starts at death, not when you see the will or when probate is granted
- Late claims are risky, courts can extend time in limited circumstances, but delay weakens your case
- Acting early matters, get legal advice immediately if you think you have a claim, even before probate
- The type of claim changes the deadline, contesting validity and claiming provision have different limitation periods
The phone call comes weeks after your father’s funeral. The executor has sent a copy of the will. You read it twice, certain there’s been a mistake.
Your brother inherited the family business. You received nothing.
You assume you have time to work things out. Perhaps the executor made an error. Perhaps there’s a later will. Perhaps you can negotiate something reasonable without lawyers.
Then a friend mentions deadlines. You search online and find conflicting information. One article says 12 months. Another says it depends. A third mentions probate but doesn’t explain what that means for your claim.
So you wait, hoping clarity will arrive. And while you wait, the clock keeps running.
What Does It Mean to Contest a Will?
When most people say they want to “contest a will,” they usually mean one of two things.
The first is challenging the validity of the will itself. You believe the will is invalid because the deceased lacked capacity, was under undue influence, didn’t know what they were signing, or the document wasn’t properly executed. If you succeed, the will is set aside and an earlier valid will governs the estate (or the estate is distributed under intestacy rules if no valid will exists).
The second is making a family provision claim. You accept the will is valid, but you believe it fails to make adequate provision for you. You’re asking the court to vary the will and award you a greater share of the estate.
These are fundamentally different claims. They have different legal tests, different deadlines, and different strategic considerations. And they’re governed by different state and territory laws.
Most disputes about wills in Australia are family provision claims, not validity challenges. That distinction matters, because the limitation periods for family provision claims are strict, short, and jurisdiction-specific.
If you don’t know which claim you’re making, you can’t know whether you’re within time.
Most will disputes in Australia are family provision claims, where the deadline is often much shorter than people expect. Misunderstanding the type of claim you have can cost you the right to bring it.
Time Limits for Family Provision Claims (State by State)
Family provision claims are the most common form of will contest, and they come with time limits that vary significantly across Australia.
In New South Wales, you must file a family provision claim within 12 months of the deceased’s death. The court has discretion to extend time, but you need a compelling reason for the delay and you must show that adequate provision was not made for you. Waiting until after probate is granted can put you in a weaker position, because the executor may have already distributed assets.
In Victoria, the limitation period is six months from the grant of probate. This is one of the shortest deadlines in the country. If probate is granted quickly, you may have less than six months from the date of death. The Victorian legislation allows the court to extend time if there is sufficient cause, but the bar is high. Delay itself weakens your case.
In Queensland, you have nine months from the date of death to file a family provision claim. The court can extend time if there is sufficient reason, but applications made after the nine-month period face closer scrutiny. The later you leave it, the harder it becomes to persuade a court that extension is warranted.
In South Australia, the time limit is generally six months from the grant of probate, though the court can extend time in appropriate cases. As in Victoria, this means you need to act quickly once probate is granted, and ideally you should be preparing your case before that date.
In Western Australia, you must file within six months of the grant of probate or letters of administration. The court has power to extend time, but the onus is on you to justify the delay and demonstrate why the claim should still be heard.
In Tasmania, the time limit is three months from the grant of probate, or six months from the date of death, whichever is later. This is a relatively short window, and late claims face significant hurdles.
In the Australian Capital Territory, you have six months from the date of probate. In the Northern Territory, the limitation period is 12 months from the date of death, with court discretion to extend time in limited circumstances.
Can you spot the pattern? The deadlines are short, they differ by jurisdiction, and they often start running earlier than you think.
If you live in one state but the deceased lived in another, the law of the state where the deceased was domiciled at death usually governs. Don’t assume your local rules apply.
When Does the Clock Start Running?
Most people assume the limitation period starts when they first see the will, or when probate is granted, or when they realise they’ve been left out.
That assumption can be fatal to a claim.
In most Australian jurisdictions, the clock starts running on the date of death. Not the date you receive a copy of the will. Not the date probate is granted. Not the date you discover you’ve been excluded. The date the person died.
There are exceptions. In Victoria, Western Australia, South Australia, and Tasmania, the limitation period runs from the date of the grant of probate. But even in those states, probate can be granted within weeks of death, and if you’re not paying attention, you can miss the window entirely.
The practical problem: you may not know there’s an issue until weeks or months after the funeral. The executor might delay distributing the will. Family dynamics might mean no one tells you what’s in it. You might assume there’s no will, or that an earlier will still governs the estate.
But the law doesn’t care whether you knew. The deadline is the deadline.
If you’re in New South Wales and your father died on 1 March, you have until 1 March the following year to file your family provision claim. If probate is granted in April and the executor distributes the estate in October, and you don’t see the will until December, you’ve still got time. But not much.
If you’re in Victoria and probate was granted on 15 April, you have until 15 October to file. If the executor doesn’t tell you until September, you have weeks to get advice, assess your claim, gather evidence, and file proceedings.
This is why acting quickly matters. The moment you suspect there’s an issue with a will, the limitation clock is already running. Waiting to “see what happens” can put you out of time before you’ve even worked out whether you have a claim.
In most states, the clock starts at death, not when you see the will. In others, it starts when probate is granted. Either way, the window is shorter than most people expect, and delay is dangerous.
Can You Contest a Will After Probate Has Been Granted?
Yes. Probate being granted does not prevent you from filing a family provision claim or challenging the will’s validity, provided you are still within the limitation period.
Probate is the court’s formal recognition that a will is valid and that the executor has authority to administer the estate. Once probate is granted, the executor can distribute assets to beneficiaries in accordance with the will. But the grant of probate does not make the will immune from challenge.
You can still contest validity after probate. If you succeed, the grant of probate is revoked and the will is set aside. You can still make a family provision claim after probate, provided you’re within time.
The practical problem is that once probate is granted, the executor is free to start distributing assets. If the estate has already been distributed and you later succeed in a claim, recovering those assets can be difficult, expensive, and sometimes impossible (particularly if a beneficiary has spent the money or transferred the asset to a third party).
This is why it’s critical to act early. If you’re contemplating a claim, notify the executor in writing before they distribute the estate. This puts them on notice that a claim is coming and makes it harder for them to argue they’ve already distributed assets in good faith.
Many executors will hold off on distribution if they know a claim is threatened. Some will apply to the court for directions. Either way, early notice protects your position.
If you miss the limitation period entirely, you can apply for an extension of time, but there’s no guarantee the court will grant it. And even if the court does extend time, the fact that you delayed will weigh against you when the court assesses your claim on the merits.
So yes, you can contest a will after probate. But the later you leave it, the riskier it becomes.
If you think you have a claim, notify the executor immediately in writing. Don’t wait for probate. Don’t wait to “see what happens.” Put them on notice, and protect your ability to recover if you succeed.
What About Challenging the Validity of a Will?
Validity challenges (arguing the will is invalid due to lack of capacity, undue influence, fraud, or improper execution) are not subject to the same short statutory limitation periods as family provision claims in most states.
In most jurisdictions, these claims are subject to general limitation periods under state limitation legislation. In practice, this often means six years, though the position is more complex than that and varies by state.
But don’t mistake the absence of a short statutory deadline for the absence of urgency.
Courts do not look kindly on parties who wait years to challenge a will. The longer you delay, the more likely it is that evidence will be lost, witnesses will die or forget critical details, and assets will have been distributed. Delay itself can become a reason the court refuses to hear your claim.
If you believe a will is invalid, you need to act quickly. Ideally, before probate is granted. If probate has already been granted, you should file proceedings as soon as you have grounds to do so.
Waiting until the estate is distributed and then trying to claw back assets from beneficiaries is far more difficult, expensive, and uncertain than acting early.
The law might give you six years. Common sense says act now.
Validity challenges may not have the same short statutory deadlines as family provision claims, but delay still destroys your case. Courts expect you to act promptly, and waiting weakens your position.
Can the Court Extend Time?
Most state and territory succession laws give courts discretion to extend time for family provision claims. But discretion does not mean leniency.
Courts approach extension applications cautiously. The onus is on you to justify why you missed the deadline and why the court should exercise its discretion in your favour.
Factors courts commonly consider include: the length of the delay, your explanation for the delay, whether you had knowledge of your right to claim within the limitation period, the strength of your claim on the merits, the prejudice to the estate and beneficiaries if time is extended, and whether assets have already been distributed.
The stronger your claim on the merits, the more willing a court may be to extend time. But even a strong claim can be defeated by unexplained delay.
If you had good reason for the delay (you were unaware of the death, you were overseas and out of contact, you only recently discovered the will, you were unaware of your rights), the court is more likely to grant an extension. If your delay is simply because you didn’t get around to it, or you were “thinking about it,” or you assumed the executor would be reasonable, expect the court to refuse the application.
The worst position to be in is applying for an extension of time after the estate has been distributed. At that point, you’re not just asking the court to let you bring a late claim; you’re asking the court to unscramble an estate that has already been finalised. Courts rarely grant extensions in those circumstances, and even if they do, recovering assets from beneficiaries can be practically impossible.
The lesson: don’t count on an extension of time. If you think you have a claim, act within the limitation period. Don’t gamble on the court’s discretion.
Extension applications are expensive, uncertain, and often unsuccessful. The best strategy is to act within time. If you’re even close to the deadline, file proceedings and argue the merits later.
Who Can Make a Family Provision Claim?
Not everyone can contest a will. Family provision laws limit claims to people who fall within specific categories of “eligible persons.”
The categories vary by state, but they generally include spouses (including de facto partners and, in some jurisdictions, former spouses), children (including adult children and stepchildren in some cases), dependants, and in some states, people in a close personal relationship with the deceased or who were part of the deceased’s household.
The key point: just because you’re family doesn’t mean you’re eligible. And just because you’re eligible doesn’t mean you’ll succeed. You must also show that the will fails to make adequate provision for your proper maintenance, education, or advancement in life (the exact test varies slightly by jurisdiction).
If you’re a distant relative, a friend, or someone who had no dependency relationship with the deceased, you probably don’t have standing to bring a family provision claim. If you do fall within the eligible categories, you still need to assess whether you have a realistic chance of success before filing.
That’s a question for a lawyer, not a question you can answer by reading online articles. But the threshold question, “am I eligible?”, is something you should clarify immediately.
Family provision claims are limited to specific categories of eligible persons. Being family is not enough. Check your eligibility before you assume you have a claim.
What Should You Do If You’re Running Out of Time?
If you discover an issue with a will and you’re close to the limitation deadline, your priority is simple: act now.
Do not wait for more information. Do not wait to see whether the executor will be reasonable. Do not wait until you feel emotionally ready. If the limitation period is about to expire, your only option is to file proceedings before the deadline.
You can file proceedings based on limited information and refine your case later. You cannot bring a claim after the limitation period has expired and hope the court will forgive the delay.
If you’re within weeks of the deadline, call a lawyer immediately. Explain the urgency. Ask them whether they can file a holding application to preserve your rights while you gather further evidence. Many firms can turn around urgent filings in a matter of days if the situation requires it.
If you’ve already missed the deadline, you need advice on whether an extension application is viable. The sooner you apply, the better your chances. Delay compounds delay, and courts view late applications brought even later with even less sympathy.
The other immediate step: notify the executor in writing that you intend to make a claim and that they should not distribute the estate. This does not extend the limitation period, but it does put the executor on notice that distribution may be challenged. If the executor proceeds to distribute assets after receiving your notice, they may be personally liable if you later succeed.
Timing is everything in will disputes. If you’re close to the deadline, stop reading this article and pick up the phone.
If you’re within a month of the limitation deadline, file proceedings first and gather evidence later. Missing the deadline closes the door. Filing on limited information can always be refined.
Why Early Legal Advice Matters
Most people come to lawyers too late in will disputes. They wait until they’ve exhausted negotiations with the executor. They wait until they’ve read every online article. They wait until probate is granted. They wait until they’re emotionally ready.
By the time they call, weeks or months have passed. The limitation period is narrowing. Evidence has been lost. Witnesses have forgotten details. The executor has distributed assets. The claim that was viable at the start is now complicated, risky, and expensive.
Early advice does not commit you to litigation. It gives you clarity.
A good lawyer will tell you whether you’re eligible, whether you’re within time, what evidence you’ll need, what the likely range of outcomes is, and what the realistic costs and risks look like. That conversation takes an hour. It can save you from spending months pursuing a claim that was never going to succeed, or from missing the deadline on a claim that would have.
The cost of early advice is a fraction of the cost of emergency filings, extension applications, and late negotiations when the executor has already started distributing the estate.
If you think there’s an issue with a will, get advice now. Not next month. Not after you’ve had time to think about it. Now.
You don’t need to be ready to start a case. You just need to know where you stand and how long you’ve got to decide.
Early advice does not commit you to litigation. It gives you the information you need to make an informed decision while you still have time to make one.
The Real Cost of Missing the Deadline
Miss the limitation deadline, and your claim is over before it starts.
Courts can extend time in limited circumstances, but extension applications are expensive, uncertain, and often unsuccessful. Even if the court grants an extension, you’ve weakened your case by showing you didn’t take the deadline seriously.
If the estate has been distributed, recovery becomes exponentially harder. Beneficiaries who received assets in good faith may resist repaying them. Some assets will have been spent or transferred to third parties. The cost of tracing and recovering those assets can exceed the value of your original claim.
And if you lose the extension application, you’ve spent money on legal fees for nothing. You’re out of time, and out of options.
The lesson: the limitation period is not a suggestion. It’s a hard deadline. Treat it accordingly.
Treat every limitation deadline as final. Do not assume the court will bail you out if you miss it. Act within time, and you control your case. Miss the deadline, and you’re at the court’s mercy.
Bringing It All Together
There is no single answer to “how long do I have to contest a will in Australia?” The limitation period depends on your state, the type of claim, and when the clock started running.
But there is one universal truth: these deadlines are shorter than most people expect, and delay closes off options.
If you discover an issue with a will, the most important step is to act quickly. Get a copy of the will, work out what kind of claim you have, identify the relevant limitation period, and get legal advice before the deadline looms.
Do not wait for the executor to be reasonable. Do not wait until you feel ready. Do not assume you have more time than you do.
The right lawyer will give you clarity. They’ll tell you whether you’re eligible, whether you’re within time, what your realistic prospects are, and what steps to take next. And that clarity is the most valuable thing you can have when you’re facing a will dispute.
Disclaimer: This article provides general information only and does not constitute legal advice. The law on contesting wills and family provision claims is complex and varies by jurisdiction. Time limits are strict, and missing a deadline can have serious consequences. If you believe you have a claim, seek legal advice immediately.
