New South Wales Consolidated Acts

TESTATOR'S FAMILY MAINTENANCE AND GUARDIANSHIP OF INFANTS ACT 1916 - SECT 5

5 Time within which application must be made

(1) No application shall be heard by the court at the instance of a party claiming the benefit of this Act unless the application is made, in the case of a testator who has died before the passing of this Act, within three months of the date thereof, but in all other cases within twelve months from the date of the grant or re-sealing in New South Wales of probate of the will or grant or re-sealing of letters of administration with the will annexed.

(2) No application under subsection (1A) of section 3 shall be heard by the court unless the application is made within twelve months from the date of the grant or resealing in New South Wales of letters of administration of the estate of the deceased person.

(2A) Notwithstanding anything in subsections (1) and (2):

(a) the time for making an application under either of those subsections may be extended for a further period by the court, after hearing such of the parties affected as the court thinks necessary, and this power extends to cases where the time for applying has already expired, including cases where it has expired before the commencement of the Administration of Estates Act 1954 ; but every application for extension shall be made before the final distribution of the estate, and no distribution of any part of the estate made before the application shall be disturbed by reason of the application or of an order made thereon,

(b) if, in any case to which the provisions of subsection (1) of section 3 apply, all the children and the widow or widower, as the case may be, shall in writing, at any time after the death of the testator, whether the testator died before or after the commencement of the Administration of Estates Act 1954 , agree to be bound by the will of the testator and if there are minors such agreement is confirmed by the Court, then no application shall be made thereafter under that subsection,

(c) if, in any case to which the provisions of subsection (1A) of section 3 apply, all the children and the widow shall in writing, at any time after the death of the intestate, whether the intestate died before or after the commencement of the Administration of Estates Act 1954 , agree to be bound by the provisions of the Wills, Probate and Administration Act 1898 , as amended by subsequent Acts, that are applicable to the distribution of the intestate’s estate as on intestacy and if there are minors such agreement is confirmed by the court, then no application shall be made thereafter under that subsection. In this paragraph "children" includes children (being under the age of twenty-one years at the death of the intestate) of a child of the intestate who died before the intestate.

(3) An application shall be deemed to be made on the day upon which the notice of motion or other process originating the application is filed.