Who Can Contest A Will In The Northern Territory?

Succession law in the Northern Territory can be confusing. A commonly misunderstood area of succession law is the eligibility criteria to make a claim against a deceased estate. Under the Family Provision Act 1970, only the deceased’s spouse and children have unconditional eligibility to contest a will in the Northern Territory. There is additional allowance for other family members to file a claim if they can meet further eligibility requirements. This article defines the nature of Family Provision Claims and explains who can contest a will in the Northern Territory.

Contesting A Will In The Northern Territory

An eligible person can make a Family Provision Claim if they were unfairly excluded from a will, or the deceased left them a bequest that was less than they were entitled to or promised. In those cases, the applicant can file a claim with the Northern Territory Supreme Court asking for adequate provision from a redistribution of the estate. 

Adequate Provision

A claimant can only successfully contest a will in the Northern Territory by establishing that they were entitled to more than they received in a will. The court considers whether a claimant received “adequate provision” from the deceased given the specific circumstances. The court assesses the claim with regard to:

  • the size of the estate and competing claims to the assets;
  • the claimant’s health, age and capacity to support themselves;
  • the claimant’s general standard of living;
  • the history of the relationship between the deceased and the claimant;
  • whether the deceased made promises to the claimant about their testamentary intentions; and
  • any tangible support (financial or otherwise) the claimant gave to the deceased or the estate.

Who Can Contest A Will In The Northern Territory?

Under section 7 of the Family Provision Act, the following people have an unqualified right to claim adequate provision from a deceased estate.

  1. The deceased’s legal spouse; and
  2. The deceased’s biological or adopted child.

The following other categories of people have a conditional right to contest a will in the NT.

  • The deceased’s de facto partner, former spouse and stepchild can make a Family Provision Claim if the deceased was providing them with some form of substantial maintenance at the time of their death;
  • The deceased’s parents can also contest the will if they were receiving maintenance from the deceased, or the testator passed away with no living de facto partner, spouse or child; and
  • A grandchild is an eligible applicant if their parent is unable to make a claim because they are already deceased. Additionally, a grandchild can prove eligibility by establishing that one of their parents does not provide them with maintenance.

Defining Maintenance

Succession law makes “maintenance” a defining indicator of eligibility to contest a will in the Northern Territory. Maintenance is monetary assistance to cover living expenses.

A person can only establish maintenance when:

  • there was an active court order instructing the deceased to pay maintenance to the applicant directly or to another person for their benefit; or
  • the deceased was maintaining the applicant at least more than nominally. This is often but not always based on a written agreement; or
  • the circumstances are such that a court would order the deceased to pay maintenance if they were still alive.

Establishing Eligibility

To make a claim, it is necessary to establish eligibility. The deceased’s spouse and children will usually be able to establish eligibility through readily available documentation, such as a marriage, birth or adoption certificate.

However, in some cases, it is more difficult to establish eligibility. For instance, a child of the deceased may not have a birth certificate with the deceased named as a parent. Under the Status of Children Act 2003, eligibility to contest a will as a child of the deceased is recognised if:

  • the deceased was married to the child’s mother at the time of conception or afterwards;
  • the father expressly or implicitly admitted paternity; or
  • paternity has been legally established.

Time Limits To Contest A Will In NT

An eligible person can only contest a will in the Northern Territory within strict time limits. First, a claimant needs to contact the executor of the estate without delay to stop them from distributing the estate as outlined in the will. Then an official Family Provision Claim must be filed with the Northern Territory Supreme Court within a year of the Grant of Probate date. In exceptional circumstances, the court may choose to hear a claim after this deadline. For instance, if the claimant was given incorrect legal advice on the time limits involved, this would be grounds for an out of time lodgement. However, the court cannot allow an application after the estate has been fully (and lawfully) distributed.

Go To Court Lawyers can answer any questions you have about who can contest a will in the Northern Territory. Please contact or call 1300 636 846 for advice on contesting a will 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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