Can A Grandchild Contest A Will In NT?

In the Northern Territory, only select family members can contest a will through a Family Provision Claim. Only the deceased’s spouse and child are automatically eligible to dispute the distribution of a deceased estate. Any other family members must prove further eligibility criteria to establish their entitlement to make a claim. Under the Family Provision Act 1970, a grandchild does have a conditional right to make a Family Provision Claim. This article explains how a grandchild can meet the eligibility requirements to contest a will in the Northern Territory.

Jurisdiction To Contest A Will

A Family Provision Claim can only be made to the NT Supreme Court when the deceased lived in the Northern Territory or had real property located in the Territory. If neither of these criteria applies, then an applicant will have to apply in a different jurisdiction.

Contesting A Will In NT

Even eligible parties can only dispute a will if they were unfairly disinherited or received less than an appropriate share of the deceased estate. In that event, an eligible applicant can file a Family Provision Claim with the NT Supreme Court asking for further provision from the estate.

NT succession law provides a deceased’s spouse and child (adopted or biological) with an automatic right to contest a will. These other categories of family members can also establish their eligibility to make a claim:

  • De facto partners;
  • Ex-spouses;
  • Stepchildren;
  • Parents; and
  • Grandchildren.

Grounds For A Grandchild To Contest A Will In NT

In the Northern Territory, a grandchild does not have an automatic right to contest a will. Courts have historically recognised that a grandparent does not have a legal or moral duty to make provision for a grandchild because that responsibility rests with the child’s own parents. However, in special circumstances, a grandparent may owe their grandchild greater provision from their deceased estate.

Firstly, a grandchild may have a child’s entitlement to claim against a deceased estate. This only applies when the grandparent officially adopted their grandchild to take on parenting duties in the absence of the child’s parents.

Second, a grandchild may be able to establish a conditional right to contest a will in the Northern Territory. The first way that a grandchild is eligible is if their own parent (who would have a valid claim against the deceased estate) has already passed away. In that case, the grandchild effectively assumes their parent’s right to contest the will. The second way that a grandchild can be eligible is by establishing that they were not maintained by either of their parents. Maintenance, in this case, refers to financial assistance with living expenses. For instance, if a granddaughter was not being supported by her father, she may be eligible to claim against her father’s parent’s deceased estate.

Will A Grandchild’s Claim Be Successful?

In every case, a grandchild must satisfy the court that there are factors (past or present) that warrant an application for greater provision from the estate. Primarily, the grandchild must prove that the testator was obliged to provide for them and failed to make adequate provision for their maintenance, education and advancement in life.

The court weighs a grandchild’s entitlement against the rights of other claimants and the existing beneficiaries. The factors that will be considered include:

  • the relationship between the grandchild and the testator;
  • whether the testator made any testamentary promises to their grandchild;
  • any financial or other types of support that either party provided to the other, or that the grandchild contributed to the deceased estate;
  • the grandchild’s financial circumstances compared to the circumstances of other beneficiaries; and
  • any other factors that the court deems relevant.

Deadline For A Grandchild To Contest A Will In NT

The grandchild should inform the executor of the estate as soon as possible of their intention to file a claim. The executor is required to halt distribution of the estate while the claim is considered and may even settle the claim without recourse to a court hearing.

Even an eligible grandchild must contest a will within certain statutory deadlines. In the Northern Territory, the deadline to file a claim is one year after the date of probate issue. The Supreme Court may choose to hear a late claim in exceptional circumstances, such as if the grandchild did not know that the deceased had died or if the grandchild received incorrect legal advice. Even if the delay was not the grandchild’s fault, the Supreme Court cannot allow a claim after the estate is fully distributed.

As this article explains, a grandchild can only contest a will in the Northern Territory in certain circumstances and within a set time frame. The experienced civil lawyers at Go To Court can advise you about whether you are an eligible grandchild and assist you with every aspect of making a claim. Please call 1300 636 846 or contact the team to discuss your claim.

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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