Challenging an estate

Contributed by MelissaYates and current to 1 May 2016

There are various ways in which a will or an estate can be challenged by a disappointed beneficiary or family member, such as:

• Challenge the validity of the will (i.e. lack of capacity or the deceased did not know and approve of the contents of the will);
• Challenge the application of the terms of the will where they are ambiguous;
• Make an application for better provision under the Family Provision Act (NT);
• Challenge the validity of the will through equitable remedies such as undue influence;
• Challenge ownership/distribution of an asset by means of a constructive trust.

Proper interpretation of the terms of a will

Where a will is meaningless or ambiguous, or there is ambiguity in the surrounding circumstances, the Wills Act (NT) allows the court to consider outside evidence to help interpret the will. The representative or someone interested in the deceased's estate can apply to the Supreme Court for a determination of a will's intent. This would occur if the terms of the will were ambiguous or the representative was unsure as to the person entitled to benefit from the will.

Challenging the will itself

Challenging a will is complicated, expensive and time-consuming. Legal advice should be sought before proceeding.

If there is no doubt over the deceased's legal capability to make the will, if it is their last will, and the words of it are clear and unambiguous, little opportunity exists to contest a will's substance. However, a challenge can be mounted when:

• it is alleged the will was incorrectly executed or has been tampered with;
• the will was executed under pressure from others or the will-maker was incapable of making it;
• the will has been incorrectly administered;
• the will-maker has made insufficient provision for the spouse or children or another close relation.

A person who wishes to contest a will would be well advised to object to a grant of probate or letters of administration by lodging a caveat at the office of the Registrar of Probates. A caveat is a warning document lodged with the application documents that, while it remains in force, prevents the applicant obtaining a grant of probate or letters of administration.

A person lodging a caveat must serve a copy on the person making or intending to make application for a grant. The caveat remains in force for six months, unless a court orders otherwise. A caveat can, with a court's approval, be withdrawn by the person who lodged it. Alternatively, a person applying for probate or letters of administration can seek a Supreme Court order rendering the caveat ineffective.

Insufficient provision for family

As a general principle, a person can leave an estate to anyone. However, under the Family Provisions Act (FPA), the Supreme Court can, if it believes a will to be unfairly causing hardship, override a deceased's wishes by granting a portion of the deceased's estate to an eligible applicant. Family maintenance proceedings must be brought within 12 months of the grant of probate or letters of administration [FPA s 9(1)]. In some situations the court will extend this time limit [FPA s.9(2)].

A widow or widower, ex-spouse, child, step-child, grandchild or de facto partner of a deceased person, are all eligible to apply [FPA s 7]. However, ex-spouses, step-children and de facto partners are only eligible if they were being maintained by the deceased at the time of their death. Maintenance means not simply that they were living with the deceased at the time of their death, but also includes court-ordered maintenance, where the deceased makes more than nominal payments, or where, if the deceased were still alive, the applicant could get an order for maintenance from the court (see Couples who are not married ).

An application will not succeed merely on the basis that a will is unfair or unjust in its distribution; an applicant must show the deceased failed to observe their legal obligation to make adequate provision for their proper maintenance and support. Courts have guidelines determining the meaning of 'adequate provision for proper maintenance and support'. The FPA also sets out criteria. Some important considerations are:

• the net value of the estate after debts, funeral, testamentary and other liabilities has been deducted. Clearly, if the estate is not big enough to be capable of redistribution the action can't succeed;
• the age, sex and health of the applicant;
• whether the applicant had been provided with independent means through any gift, transfer or other provision made by the deceased during their life or derived from any other source whatsoever;
• the relationship between the applicant and the deceased;
• the character and conduct of the applicant. For example, the court could refuse on the basis of an applicant's chronic drunkenness, serious extravagance with money or abandonment of obligations to children.