Can A Beneficiary Contest A Will? (NT)

An eligible beneficiary can contest a will in the Northern Territory if the testator did not provide for them adequately. Eligible beneficiaries can make a Family Provision Claim for a greater share of the deceased estate. This article explains the eligibility criteria and the process involved for a beneficiary to contest a will in the Northern Territory.

Contesting A Will In The Northern Territory

It can seem ungrateful for someone who receives a bequest to question the amount and nature of their inheritance. Still, there are circumstances when a person is morally and legally entitled to receive more than the testator provides for them. In such a case, the Family Provision Act 1970 provides a legal avenue for that person to claim further provision from the deceased estate. It is up to the prospective claimant to establish their right to contest a will in the Northern Territory.

Contesting A Will In The Northern Territory Jurisdiction

The first step for anyone considering making a claim is to check whether the Supreme Court of the Northern Territory is the correct jurisdiction. An eligible person can only file a claim against a deceased estate if the testator lived in the Northern Territory before they died or owned real estate within the jurisdiction.

Can A Beneficiary Contest A Will In The NT?

The second step in making a Family Provision Claim is to establish eligibility to make a claim. A beneficiary has an unequivocal right to contest a will in the Northern Territory if they were:

  • Married to the testator when they passed away; or
  • The deceased’s child.

An ex-spouse, de facto partner or stepchild beneficiary also has a conditional right to claim against a deceased estate if he or she was maintained by the deceased immediately prior to their death. A beneficiary who is a parent of the deceased can only contest the will if they were maintained by the deceased or if the testator died without a spouse, de facto partner, or children. A grandchild beneficiary can make a claim if their parent (who was the deceased’s child) is already deceased. Additionally, a grandchild is eligible if at least one of their parents was not providing them with maintenance at the time of the testator’s death.

How Can A Beneficiary Establish Maintenance?

A person is only legally regarded as being maintained by the testator when:

  • There was a court order in force requiring the deceased to pay maintenance to the beneficiary or for the benefit of the beneficiary;
  • The deceased was (whether under a written agreement or not) maintaining the beneficiary or making a greater than nominal contribution to their maintenance; or
  • If the deceased were still alive, the circumstances are such that a court would order them to pay maintenance to the beneficiary.

In simple terms, a person is being maintained when someone else is helping to provide basic needs, such as shelter and food. It may not be sufficient to demonstrate maintenance to prove, for example, that a testator was making a contribution to their grandchild’s education. Rather, it is necessary to prove that there was a substantial and regular contribution that the beneficiary relied upon.

Adequate Provision

The last step for any beneficiary is to assess their chances of successfully contesting the will in their favour. An experienced solicitor can provide a realistic assessment of a claimant’s case given the specific circumstances. The test, in this case, is whether the beneficiary has already received “adequate provision” in the will. The court considers a number of factors in making this determination, especially the beneficiary’s financial circumstances. Additionally, the court assesses a claim on the basis of:

  • The beneficiary’s age and health, with regard to their capacity to earn their own living;
  • The beneficiary’s usual standard of living;
  • The relationship between the testator and the beneficiary;
  • Any pre-existing promise the testator made to the beneficiary; and
  • Any financial or emotional support the beneficiary provided to the testator or the deceased estate.

Deadline For A Beneficiary To Contest A Will In NT

An eligible beneficiary only has a limited window during which to contest a will. In the Northern Territory, a beneficiary only has a year after the executor obtains a probate grant to file an official claim with the Supreme Court. The court may be willing to hear an out-of-time application, but not if the estate has been fully distributed. The beneficiary should therefore let the executor know well before the deadline of their intention to claim. Not only does this prevent the executor from a premature distribution of the estate, but it may be possible to negotiate a private settlement with the executor and avoid the trouble and expense of a court hearing.

Go To Court Lawyers can help if you have further questions about your rights as a beneficiary to contest a will in the Northern Territory. Please contact the team on 1300 636 846 for advice on this or any other legal matter.

Author

Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first-class honours from the University of Tasmania, a Bachelor of Laws with first-class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade of working in higher education, Nicola joined Go To Court Lawyers in 2020.
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