The 12-Month Deadline and Why It Exists

The 12-month time limit runs from the date of death, not from the date probate is granted. This surprises many people, since a family provision claim usually cannot proceed to a hearing until probate has been granted, yet the clock has already been running the whole time probate was being obtained.

The deadline applies to every eligible person under section 57 of the Succession Act 2006 (NSW), whether they are a spouse, child, former spouse, or a person who was dependent on the deceased and a member of their household. Eligibility and timing are separate questions, and satisfying one does not excuse a failure on the other.

The deadline exists to let executors administer and distribute estates with reasonable certainty. Without a cut-off, beneficiaries could never be confident their inheritance was final, and executors would face open-ended exposure to claims long after distribution.

The full text of section 58 confirms the deadline applies “whether or not administration of the estate… has been granted,” meaning the 12 months keep running regardless of how long the probate process itself takes.

Two Ways to Extend the Deadline

Section 58(2) sets out exactly two routes past the 12-month cut-off, and they work quite differently in practice.

Court Order on Sufficient Cause

The Court can extend time if the applicant shows “sufficient cause” for the delay. This is not a fixed checklist. The Court weighs the explanation for the delay, how long the delay was, and whether extending time would unfairly prejudice anyone who has already relied on the estate being finalised.

Consent of the Parties

Since amendments that commenced on 2 July 2018, the parties to the proceedings can simply consent to the application being made out of time, without needing a separate court order approving that consent. This removed an earlier requirement under which the Court had to approve an extension even where everyone already agreed to it.

In practice, consent-based extensions remain uncommon. A beneficiary who already stands to receive a full distribution has little incentive to agree to let a late claimant chip into the same estate.

More: How to Contest a Will in NSW?

What Courts Look at When Assessing Sufficient Cause

There is no rigid statutory test for what counts as sufficient cause. Instead, courts weigh a combination of factors specific to each case, drawn from established NSW case law on late applications.

• The length of the delay, since a claim filed one month late faces a very different assessment than one filed several years late
• The reason for the delay, including whether the applicant did not know they had a right to claim, was misled about their entitlement, or simply delayed making a decision
• How promptly the applicant acted once the problem became apparent, since genuine ignorance followed by swift action once the right to claim is discovered is generally viewed far more favourably than ongoing inaction
• Whether the estate has already been distributed, because extending time is far less likely once beneficiaries have received and potentially spent their inheritance
• Whether anyone would be unfairly prejudiced by allowing the claim to proceed out of time, beyond the simple fact that they would now have to share the estate

Justice Hallen’s approach in the NSW Supreme Court, applying this reasoning in cases such as Byrne v Pickering [2011] NSWSC 572, has confirmed that where the delay is not unduly long, and the estate remains undistributed, genuine ignorance of the right to claim followed by a prompt application once that right becomes known will usually amount to a sufficient explanation.

An Extension Is Only the First Step

Being granted an extension does not mean the claim automatically succeeds. It simply allows the Court to consider the claim at all. The applicant then still has to satisfy the ordinary requirements under section 59 of the Succession Act 2006 (NSW): that they are an eligible person, and that adequate provision has not been made for their proper maintenance, education, and advancement in life.

In practice, courts often deal with the extension question and the substantive merits together at the same hearing, rather than as two entirely separate stages. This means a weak claim gains little from a generous approach to timing, and a strong claim can still be defeated if the delay itself cannot be adequately explained.

Why Estate Distribution Changes Everything

The single biggest factor working against a late claimant is a distributed estate. Once assets have actually reached beneficiaries, unwinding that distribution becomes far more disruptive than simply asking the Court for more time.

This is why executors are encouraged to publish a Notice of Intended Distribution before finalising an estate. The notice gives potential claimants a final opportunity to come forward, and it gives the executor a measure of protection if a claim does eventually surface after distribution has occurred.

For a claimant, this cuts the other way. The longer an estate sits undistributed while a decision about whether to claim is delayed, the stronger the applicant’s practical position tends to be, since prejudice to the estate is one of the main factors weighing against an extension.

Consequences of Missing the Deadline Without Seeking an Extension

Filing after 12 months without addressing the time limit at all is not simply a procedural inconvenience. The claim can be dismissed outright on the basis that it is out of time, before the Court ever considers whether the provision made was adequate.

This makes the extension application a genuine threshold the claimant must clear first. The Succession Act 2006 (NSW) in full sets out this framework alongside the rest of the family provision regime, and according to Legal Aid NSW’s guidance on family provision claims, claimants who are unsure whether they are still within time should seek advice promptly rather than assume the deadline has already closed off their options.

How to Approach a Late Claim

Anyone considering a family provision claim outside the 12-month window should treat the timing question as the first issue to resolve, not an afterthought to raise once the substantive claim is underway. Extending the 12-month deadline successfully depends heavily on how well the delay is documented and explained from the outset.

Practical steps include:

1. Establish the exact date of death, since the 12 months run from that date regardless of when the will-maker’s affairs were finalised
2. Document the reason for the delay clearly, including dates, correspondence, and any evidence of when the applicant became aware of their potential claim
3. Check whether the estate has been distributed, since this materially affects both the strength of an extension application and the urgency of acting
4. Approach the executor or beneficiaries about consent before assuming a contested court application is the only path
5. File the extension application alongside the substantive claim, since the Court typically deals with both together rather than as separate proceedings

More: What Is a Deed of Family Arrangement in NSW and How Does It Resolve Estate Disputes?

How Empower Probate Lawyers Can Help

Late family provision claims carry a genuine risk of being dismissed before the merits are ever considered, which makes the quality of the extension argument just as important as the underlying claim itself.

We advise claimants and executors on family provision claims and disputing a will across NSW, including matters where the 12-month deadline has already passed. We help gather the evidence needed to support an extension application and assess realistically whether a late claim has genuine prospects before committing to court proceedings.

Call 1300 481 161 for an initial consultation. Specialist advice. Free initial consultation. Deferred fee arrangements are available in eligible cases.

Frequently Asked Questions

Can you still make a family provision claim after 12 months in NSW?

Yes, but only if the Court grants an extension on sufficient cause being shown, or if all parties to the proceedings consent to the late application under section 58(2) of the Succession Act 2006 (NSW).

Does the 12-month deadline start from the date of death or the date of probate?

From the date of death. The deadline runs regardless of how long it takes to obtain probate or letters of administration, so waiting for a grant before deciding whether to claim can use up valuable time.

What counts as sufficient cause for a late claim?

There is no fixed list, but courts generally consider the length of the delay, the reason for it, how quickly the applicant acted once they learned of their potential claim, and whether the estate has already been distributed.

Is it easier to get an extension if the estate has not been distributed yet?

Generally, yes. Courts are more willing to extend time where the estate remains undistributed, since allowing a late claim causes far less disruption than unwinding distributions already made to beneficiaries.

Do all parties have to agree before a late claim can proceed by consent?

Yes. Section 58(2) allows an extension without a separate court order only where every party to the proceedings consents. If even one party objects, the applicant must instead satisfy the Court that sufficient cause exists.

What happens if I file a claim late and cannot show sufficient cause?

The claim can be dismissed as out of time before the Court considers whether adequate provision was made. This is why the extension question needs to be addressed directly, rather than assumed or overlooked.

Does getting an extension guarantee my claim will succeed?

No. An extension only allows the Court to consider the claim. The applicant still has to satisfy the ordinary eligibility and adequate provision requirements under section 59, and both issues are often argued together at the same hearing.

Should I try to negotiate with the executor before filing a late claim?

It can help. Raising the issue directly with the executor or beneficiaries may lead to a negotiated consent to the late application, which avoids the cost and uncertainty of arguing sufficient cause before the Court. This is not always successful, since beneficiaries have little incentive to agree, but it is worth attempting before assuming litigation is the only path.