Left Out of a Will? The Deadline to Contest It in Your State (3 Months in Tasmania, 12 in New South Wales)

Your father’s will leaves the house and the super to a sibling and a note that you “have been provided for during my lifetime”. You weren’t. Or you’re the de facto of twelve years and the will pre-dates you entirely. Or you’re the stepchild who cared for her for the last five years and got a watch. Everyone tells you “contest it”, and then the executor’s solicitor writes to say the estate will be distributed shortly.

Every Australian state allows an eligible person to apply to the Supreme Court for provision (or further provision) out of an estate where the will doesn’t make adequate provision for their proper maintenance and support. Many settle before trial. But the time limits are short, they run from different dates in different states, and once an estate is distributed your options narrow sharply. Step one is not a lawsuit; it’s a notice.

Your rights

Family provision legislation (called by different names in each state) lets the court override a will, or the intestacy rules, in favour of eligible people: spouses and de facto partners, children (including adult children and, in most states, stepchildren and adopted children), former spouses in some states, grandchildren and members of the household who were dependent on the deceased. The court looks at your financial position and needs, the size of the estate, your relationship with the deceased, contributions you made, and the competing claims of other beneficiaries. A “no-contest” clause or a statement that you were “provided for” doesn’t bind the court.

Two further rights matter at the start. An executor who has notice of an intended claim and distributes anyway can be personally liable, so a written notice protects the estate you’re claiming against. And in most states an eligible person is entitled to a copy of the will and basic information about the estate.

By state

• New South Wales. Succession Act 2006, Chapter 3. Apply within 12 months from the date of death. Eligible persons include spouse, de facto, child, former spouse, a dependent grandchild or household member, and a person in a close personal relationship. New South Wales also has “notional estate” powers to claw back assets given away or held in super or joint names. Supreme Court of New South Wales.
• Victoria. Administration and Probate Act 1958, Part IV. Apply within 6 months from the grant of probate or letters of administration. Eligible persons are defined by category (spouse, domestic partner, child, stepchild, and others who were dependent). Supreme Court of Victoria (or County Court).
• Queensland. Succession Act 1981, Part 4. Give the executor written notice of intention within 6 months of death, and file the application within 9 months of death. An executor who distributes after 6 months without notice is protected. Spouse, child (including stepchild) and dependants are eligible. Supreme Court of Queensland (or District Court).
• Western Australia. Family Provision Act 1972. Apply within 6 months from the grant of probate. Spouse, de facto, child, stepchild in some circumstances, grandchild in some circumstances, and a parent in some circumstances are eligible. Supreme Court of Western Australia.
• South Australia. Succession Act 2023, Part 6 (from 1 January 2025). Apply within 6 months from the grant of probate. Spouse, domestic partner, child, stepchild and grandchild in some circumstances, and a parent in some circumstances. Supreme Court of South Australia.
• Tasmania. Testator’s Family Maintenance Act 1912. Apply within 3 months from the grant of probate, the shortest limit in the country. Spouse, child, parent in some circumstances, and a person entitled to maintenance. Supreme Court of Tasmania.
• Australian Capital Territory. Family Provision Act 1969. Apply within 6 months from the grant of probate. Partner, child, stepchild, grandchild and parent in defined circumstances. Supreme Court of the Australian Capital Territory.
• Northern Territory. Family Provision Act 1970. Apply within 12 months from the grant of probate. Spouse, de facto, child, stepchild, grandchild and parent in defined circumstances. Supreme Court of the Northern Territory.

Courts can extend time in limited circumstances, usually only if the estate hasn’t been distributed and there’s a good reason for the delay. The Claim Done document asks your state first and drafts the notice to that state’s Act, eligibility class and deadline.

What to do right now

1. Find the two dates. Date of death, and whether probate has been granted (search the Supreme Court probate registry online in your state, or ask the executor). Your deadline runs from one or the other.
2. Confirm you’re eligible. Match your relationship to the categories for your state. Stepchildren and dependants have extra conditions in some states.
3. Send a written notice of intended claim to the executor (or the estate’s solicitor). State your eligibility, that you intend to apply for provision, request a copy of the will and an inventory of the estate’s assets and liabilities, and ask for a written undertaking not to distribute pending resolution.
4. Write down your needs and contributions. Income, assets, debts, health, dependants; and what you did for the deceased (care, unpaid work, money into the house). This is the case.
5. Diarise the filing date. The notice preserves your position; only a filed application (or a written extension agreement) stops the limit.

What the notice actually does

An executor’s duty is to administer the estate according to the will, and they’re entitled to distribute once the statutory period for claims passes. In Queensland that protection depends on whether notice was given within six months; in other states, an executor who distributes with knowledge of a claim risks personal liability. So a clear, dated notice changes the executor’s risk calculation immediately. It also opens the negotiation: a notice that sets out eligibility, need and the deadline makes an early settlement discussion possible before anyone incurs six figures in legal costs. Never send it as a threat or with an inflated claim; state the facts and the request.

Who to complain to

The Supreme Court of your state hears the application. For an executor who refuses to provide the will, delays administration or acts improperly, the Supreme Court can order production, compel administration or remove the executor; the Public Trustee in each state can advise where it is the executor.

Put the estate on notice today — $49

Claim Done drafts a Notice of Intended Family Provision Claim for your state that states your eligibility under the Act, requests the will and estate inventory, seeks an undertaking not to distribute, and records the statutory deadline, ready to send to the executor or the estate’s solicitor.

Draft My Notice to the Executor — $49 →

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