Intestacy in the NT

When someone passes away in the Northern Territory without making a will, their estate is subject to the law of intestacy in the NT. The intestacy provisions of the Administration and Probate Act 1969 apply to anyone who died leaving no valid will or died leaving property not covered by their will. This law specifies how an intestate estate is distributed, including the priority order of inheritance. This article explains the implications of this law on the distribution of intestate estates in the Northern Territory.

Intestacy in the NT

A person is intestate if they fail to leave a legally binding will upon their death. The most common reason for intestacy is a person putting off making a will because of their conviction that it is not necessary given their age and health.

Failing to make a will means that a deceased estate is distributed according to rules set out in legislation. This means that the true wishes of the deceased may not be followed. In addition, an intestate estate is more difficult, costly and time-consuming to administer.

Intestacy in the NT Because Of Invalid Will

A person can be intestate while believing that they have made comprehensive testamentary arrangements. A will is only valid and legally binding if it meets certain statutory requirements. While the courts have made exceptions in the past, a will should be properly prepared, in writing, correctly dated and witnessed. The validity of a will can also be challenged on the basis of:

  • The testator’s lack of mental capacity. A will is invalid if the will-maker was suffering from dementia or another mental infirmity when they gave their testamentary instructions.
  • Forgery or undue influence. A will is invalid if it is not a genuine document made by the testator. A will is also invalid if the deceased was in some way manipulated or pressured into making the will.

If the document is found to be invalid and the deceased did not prepare an earlier valid will, then they die intestate.

Letters Of Administration

When a deceased is intestate, an appropriate person must apply for Letters of Administration to assume authority over the deceased estate. The Registrar of the Supreme Court can grant administration of the intestate estate to:

  1. The de facto partner or spouse of the deceased;
  2. The deceased’s next of kin (or several next of kin acting conjointly); or
  3. The deceased’s partner or spouse and next of kin acting conjointly;

Sometimes, there is no living, willing and trustworthy person available from the list above. In that case, the Registrar can appoint any person (including a creditor of the estate) they deem appropriate. The Registrar may order the applicant to file a bond with a surety before granting authority to collect and administer the estate.

Order Of Inheritance

When there is no valid will, the order of inheritance is set out in legislation. In the Northern Territory, the deceased’s spouse and children typically inherit the bulk of an intestate estate. Still, the exact distribution depends on the size of the estate and the specific circumstances.

Spouse But No Children, Siblings or Parents

A spouse married to the deceased inherits everything if the deceased passes away, leaving no surviving children, siblings or parents. When there are several eligible spouses or partners (for instance, a current de facto partner and still legally-married spouse), they share the entire intestate estate.  This is a prime example of when intestacy provisions might result in an outcome contrary to the deceased’s wishes.

Children But No Spouse

When the deceased has no de facto partner or spouse, any children inherit the entire intestate estate.

Spouse And Children/Grandchildren

When a deceased is survived by both a spouse and children/grandchildren, the estate is divided up according to the total value of the estate.

  1. If the estate is worth $350,000 or less, the spouse inherits the whole estate; or
  2. If the estate is worth more than $350,000, the spouse inherits $350,000 and
  3. Half of the remainder (if there is one child/grandchild); or
  4. One-third of the remainder (if there are several children/grandchildren).

The children/grandchildren inherit the balance of the deceased estate.

Spouse And Siblings/Parents But No Children

A spouse inherits the entire estate up to $500,000 and half of any remainder if the deceased is survived by their spouse and parents. The remaining half is shared by the deceased’s parents. If the parents are also deceased, the intestate person’s siblings inherit the remainder equally.

If the deceased has no children or spouse, the following order of inheritance applies:

  • Parents
  • Brothers and sisters
  • Grandparents
  • Aunts and uncles
  • If there are no remaining family members, the NT government is next in line to inherit.

The intestacy rules in the Northern Territory are very prescriptive, but they do remain subject to any successful family provision claim. Go To Court Lawyers are here to help with any legal assistance, representation or advice you require on the topic of intestacy in the Northern Territory. Please contact or call 1300 636 846 today.

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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