Contesting A Will

In the Northern Territory, eligible persons can contest a Will and make what is called a Family Provision Application if they have been left without adequate and proper provision from a deceased estate. Our contested Wills and estates team practices exclusively in Wills and Estates Law and is here to guide you through the process and fight to achieve the best possible outcome. If you are considering contesting a Will, or if you have a question, we encourage you to call us on 1300 038 223 for a case assessment.

Each state of Australia has a different set of rules which apply when contesting a Will. There are different time limits and eligibility differs in each State depending on where the deceased died. If you are claiming in the Northern Territory, the information below is relevant.

Grounds for contesting a will in the NT

In the Northern Territory, a person contests a Will by making a Family Provision Application under the Family Provision Act (NT). In the Northern Territory, you may contest a Will if:

1. You are an eligible person; and

2. You believe you have been left without adequate and proper provision from a deceased person’s Will.

The court may consider your financial position, your relationship with the deceased, the size of the estate and the deceased’s relationship with other persons who are eligible to make an application. Adequate provision is complex and difficult to define as it varies with every unique case.

How to contest a Will

Generally a Family Provision Application is made in the Northern Territory if either:

1. The deceased lived in the Northern Territory at the date of his or her death; or

2. The deceased lived elsewhere but owned assets in the Northern Territory.

The person contesting the estate must be an eligible applicant, as defined under Section 7 of the Family Provision Act (NT). The application must be made within 12 months of the date on which probate or letters of administration was granted , or outside of 12 months with special leave from the court.

Where an application has been made to the court for provision out of the estate of a deceased person, the applicant is required to serve notice of the application on the Estate.

Eligible applicants

In the Northern Territory, there is a category of persons who are eligible to make an application for provision from a deceased person’s estate. These persons are listed in Section 7 of the Family Provision Act (NT).

The following persons are eligible to make an application to the court for an order for provision or further provision:-

1. A spouse or de facto partner;

2. Ex-spouse;

3. Child;

4. Stepchild;

5. Grandchild;

6. Parent of a deceased person.

However, ex-spouses, stepchildren, grandchildren, de facto partners and parents of the deceased are only eligible if they were being maintained by the deceased at the time of their death. Maintenance means not simply that they were living with the deceased at the time of their death, but also includes court-ordered maintenance, where the deceased makes more than nominal payments, or where, if the deceased were still alive, the applicant could get an order for maintenance from the court.

If you are considering contesting a Will, or if you have a question, we encourage you to call us on 1300 038 223 for a free initial case assessment.

Time limits

Family Provision Applications must be filed within 12 months of the grant of probate or letters of administration. In some situations, the court will extend this time limit. We encourage you to make contact with our team on 1300 038 223 for a free case assessment, even if you have exceeded the 12-month time limit.

How do I get a copy of a Will?

A common problem that people encounter is that they do not know if they have been included in the deceased person’s Will. The first thing you should do is contact the executor or the solicitor acting for the estate. The executor is the person responsible for administering the deceased’s estate.

Under Section 54 of the Wills Act 2000 (NT), the following persons are entitled to inspect or be given a copy of a deceased’s will:

• A person named or referred to in the Will, whether as a beneficiary or otherwise;

• The surviving spouse or child of the deceased person;

• A parent or a guardian of the deceased person;

• A person who would be entitled to a share of the deceased person’s estate if the deceased person had died intestate;

• A creditor or other person having a claim at law or in equity against the deceased person’s estate;

• A beneficiary of a prior will of the deceased person;

• A parent or guardian of a minor referred to in the will or a minor who would be entitled to a share of the deceased person’s estate if the deceased person had died intestate.

Who pays the fees?

In the Northern Territory, the Judge has discretion regarding legal costs in family provision proceedings.

If the Judge makes an order for provision for an applicant, the estate will usually pay the applicant’s ordinary costs. If the applicant is unsuccessful and the Judge makes no order for provision for the applicant, then the Judge may order the applicant to pay the executor’s costs of defending the proceedings.

If you are considering contesting a Will, seek advice from a lawyer who specialises in this area of law.

Intestacy

In the Northern Territory, the laws of intestacy are set out in the Administration and Probate Act (NT) (the ‘Act’). The rules in the Act apply to the estate of any person who was living in the Northern Territory at the time of their death and did not leave a Will. These rules will also apply to any property that was not covered by a Will.

An intestate estate is distributed in a specific way under the law of the Northern Territory and has a clear inheritance order as well as specific steps that need to be followed.

Generally, the spouse and any children will inherit the bulk of the estate, but the exact way it is broken down depends on how much the estate is worth and the specific situation.

Spouse only

Where the deceased is survived only by a spouse (ie. no children, parents or siblings), the spouse inherits everything. If there is more than one eligible spouse or partner, then they share the entire estate.

Spouse and children

When the deceased is survived by a spouse and children or grandchildren, the way the estate is divided will depend on the dollar value of the estate.

If the estate is worth less than $350,000, then the spouse inherits it all.

If the estate is worth more than $350,000, then the spouse inherits the first $350,000 plus:

• Half the remainder when there is only one child;

• One third of the remainder when there is more than one child.

The children inherit the remainder.

Spouse and parents or siblings, but no children

If the deceased is survived by a spouse and parents but no children or siblings, the spouse can inherit the full amount of any estate worth up to $500,000 as well as half of any remainder over this amount.

Any other remainder goes to the intestate’s parents if they are still alive. Where necessary, such as if the intestate’s parents have separated, then the amount is divided equally among both parents.

If the parents have not survived the intestate, then any brothers and sisters can inherit the parent’s amount instead, also divided equally.

No spouse but children

If there is no spouse or eligible de facto partner to inherit, then the intestate’s children inherit the entire amount.

Parents only

If the deceased is survived by parents only, the parents are entitled to the full amount, divided equally between them if necessary.

No spouse and no children

If the intestate is not survived by any children, spouse or partner, then the following order applies:

1. Brothers and sisters;

2. Grandparents;

3. Aunts and uncles; and then

4. If there are no family members, the Northern Territory government may take the property.

Invalid Wills

In order for a Will to be valid, it must be in writing andwitnessed correctly. A court may in certain circumstances admit a document which does not meet all of these requirements.

The validity of a Will may also be challenged on other grounds including:

1. The lack of mental capacity. A Will may be invalid where the deceased had dementia or was of unsound mind at the time that instructions were provided for the preparation of the Will.

2. Forgery. A Will may be invalid if all or part of it was a forgery.

3. Undue influence. A Will may be challenged because the deceased was pressured, forced, tricked or manipiulated into making the Will.

Fraud, forgery and undue influence matters involve establishing that the testator who was in a vulnerable position was manipulated to leave his or her property in a particular way.

If a Will is found not to be valid and the deceased did not make an earlier Will, then an application for Letters of Administration will be required to be made by the spouse,de facto partner or one of the next of kin who is over the age of 18 years.