Can An Ex-Spouse Contest A Will In NT?

Only select people can dispute a deceased’s will in the Northern Territory. Not surprisingly, the deceased’s spouse and children have an automatic legal right to claim fair provision from the deceased estate. This aligns with community expectations that the main beneficiaries of a deceased estate should be the deceased’s spouse and dependent children. More unexpectedly, a former spouse has a conditional right to make a Family Provision Claim, although this claim will only be successful in specific circumstances. This article explains how an ex-spouse can contest a will in the Northern Territory.

The Impact Of Divorce And Separation On A Will

Most husbands and wives make their spouses the main beneficiary of their deceased estate. This is often seen as the natural decision, given that many couples share finances and contribute to the combined asset pool. When a married couple separates but has not yet divorced, there is no automatic change to any testamentary arrangements. This means that if one of the separated spouses dies, the other spouse retains their rights to inherit under the terms of the will. This is one of the reasons that it is vital to update a will following a separation.

Once a couple legally divorces, there is an automatic impact on any testamentary arrangements. A divorce negates any appointment of the ex-spouse as executor, trustee or guardian, and revokes any bequest for the ex-spouse in the will. There is an exception if the testator writes the will with the intention that the provisions should stand regardless of the divorce.

Contesting A Will In The Northern Territory

In the Northern Territory, a will-maker has testamentary freedom to distribute their assets as they please. However, the Family Provision Act 1970 provides for variation to testamentary instructions to provide adequate provision for entitled family members.

An eligible applicant can file a claim with the NT Supreme Court for a larger inheritance. In the Northern Territory, only the deceased’s wife, husband and child have an absolute right to make this claim. Beyond that, other family members (such as the deceased’s parents, grandchild, stepchild, de facto partner and ex-spouse) must establish further eligibility criteria.

Can An Ex-Spouse Contest A Will In the NT?

People typically feel that their obligations to provide for their spouse ends when they make final property settlement arrangements after a divorce. However, an ex-spouse can contest a will if the deceased was maintaining them immediately before dying. In succession law terms, “maintenance” refers to both court-ordered spousal maintenance, and situations when the court would make a maintenance order if the deceased was alive to attend a court hearing. An ex-spouse might also be maintained by the deceased because they continued to cohabitate with them after they divorced. In the same way, an ex-spouse can qualify if they were receiving substantial contributions to their upkeep from the deceased immediately prior to his or her death. 

How Likely Is An Ex-Spouse To Succeed if they Contest a Will?

It must be noted that just because an ex-spouse is eligible does not guarantee they will be successful in their claim. A claimant might have a case if they had an ongoing close relationship with the deceased after their divorce. A divorced couple might even have been on the point of reconciliation when the wife or husband passes away. A former spouse may have a strong case if the testator promised to leave them provision in their will.

Typically, partners agree to a fair division of assets on separation and subsequently separate their finances. When a couple’s finances are fully separated, it is difficult for a claimant to establish that they were in some way being maintained by their former spouse.

Courts have historically shown more willingness to recognise an ex-spouse’s entitlement when they had a continuing financial relationship with the testator. A claimant has a better claim if there was no official property settlement after the couple dissolved their marriage. For instance, an ex-spouse is more likely to succeed if the couple owned a business together and decided to remain business partners instead of selling or dividing the company.

The NT Supreme Court considers whether the claimant retained a moral and legal right to further provision from their former spouse’s estate. The claim is assessed according to many factors, including:

  • The length of the marriage and how long it has been since the couple divorced;
  • Any contribution the claimant made to the assets of the deceased estate;
  • The ex-spouse’s personal and financial circumstances compared to other prospective beneficiaries; and
  • Any evidence of the deceased’s testamentary intentions towards their former spouse.

In the Northern Territory, an ex-spouse can only contest a will within the twelve months since the probate grant issuance. It may be possible to make an out-of-time application if the claimant can prove that they were unaware of the testator’s death or the deadline to file a claim. However, there is no chance for this exception after the estate has been distributed.

The team at Go To Court can help you file a claim to meet the deadline, or see if it is possible to make an out-of-time application. Contact the team on 1300 636 846 to ask any questions about eligibility or to start a claim against a deceased estate.

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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