Four Mistakes To Avoid When Contesting A Will (NT)

Contesting a will can be a daunting prospect. Certainly, making a claim against a deceased estate can be a long and fraught process. Negotiating for a larger share of an estate can be emotionally exhausting, especially if the claimant has a pre-existing and difficult relationship with the executor of the estate. An experienced wills and estates lawyer can offer advice on how best to contest a will in the Northern Territory. A lawyer can even negotiate with the executor to avoid unnecessary and costly court hearings. This article explains four common mistakes to avoid when contesting a will in the NT.

Contesting a will in the NT Mistake #1: Misunderstanding Your Rights

Succession (that is, the legal consequences of a person’s death on their property) is a complex area of law. To further complicate matters, the rules vary according to the state or territory where the deceased resided before their death. It may even be necessary to follow two different sets of rules if the deceased owned property in more than one jurisdiction.

Unless a claimant is familiar with Northern Territory succession law, they are probably unaware of all their rights under the Family Provision Act 1970. It is essential for any prospective claimant to understand their legal entitlements under this law. Eligible people can claim against the deceased estate whether they were entirely disinherited or felt that their inheritance was inadequate in the circumstances. However, only a short list of people in the deceased’s life is eligible to contest their will. The deceased’s spouse and child have an unconditional right to make a claim. Others, such as the deceased’s de facto partner, must establish further eligibility criteria.

Contesting a will in the NT Mistake #2: Missing Essential Deadlines

In the aftermath of a loved one’s death, the last thing that anyone wants to focus on is administrative details. Unfortunately, there are statutory deadlines that a claimant must meet when they want to contest a will. In the Northern Territory, a claimant should contact the executor immediately to forestall them from distributing the deceased estate.

Under the Family Provision Act, a claimant must file a claim within twelve months of the date the Grant of Probate was issued. The Supreme Court may extend this deadline if the claimant has a compelling reason for the delay. For instance, the claimant may not have been informed of the deceased’s death until after the deadline. Still, the court cannot grant an extension if the executor has already fully and lawfully distributed the deceased estate. In any case, it is best for a claimant to consult a solicitor to see if they are within the deadline or have a compelling case for an out-of-time application.

Contesting a will in the NT #3: Not Negotiating With The Executor

The first chance for a claimant to settle an estate claim is when they advise the executor of their intention to contest the will. The executor represents the estate in any legal proceeding and is required to try to settle any valid claims to avoid additional costs and lengthy delays. 

The claimant can take the opportunity of this first discussion to discuss the merits of their claim with the executor. However, it can be difficult with a private negotiation to know when a settlement is fair. In that case, an experienced solicitor can give advice with knowledge of legislation and case law that informs the settlement proceedings. A claimant should accept if an executor makes a reasonable settlement offer at this early stage. If the case proceeds to a hearing and the court orders a smaller settlement, the court might even “punish” the claimant for not taking the original offer by making them pay the estate’s legal costs.

Common Mistake #4: Not Seeking Legal Advice

A claimant can steer clear of most mistakes by obtaining expert legal advice on contesting a will in the Northern Territory. A wills and estates solicitor can provide a claimant with guidance on their eligibility to claim and provide a realistic analysis of the claimant’s prospect of success. Contacting a solicitor at the outset ensures that the claimant is not throwing away their money and time on a meritless claim. A solicitor can also act as the claimant’s representative during negotiations with the estate executor and their lawyer. Just having a legal representative can impress the executor with the seriousness of the claim. On the other hand, if the case does proceed to court, a solicitor can make the best possible case and competently respond to the opposing counsel’s rebuttal. 

Claimants often hesitate to engage a solicitor for fear of the costs involved in contesting a will. Many claimants are pursuing a claim expressly because they are in financial need and are unable to afford upfront legal fees. Go To Court Lawyers will usually offer to represent their family provision claimants on a “No Win, No Fee” basis. In that case, our solicitors only receive payment if the client is successful in obtaining a larger share of the estate. As such, all Go To Court lawyers are invested in their client’s success.

These are just four of the mistakes to avoid when contesting a will in the Northern Territory. If you would like to improve your chances of success by avoiding other commonly made mistakes, contact GTC lawyers on 1300 636 846.

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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