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This article was written by James Daly - Senior Associate - Brisbane

James Daly holds a Masters of Applied Law majoring in Wills and Estates from the College of Law as well as a double undergraduate degree from Victoria University in Business and Law. James moved to Brisbane from Victoria in late 2020. James works only in Wills and Estates matters, with a particular focus in Wills and Estates Litigation. James has...

Family Provision Claims by Spouses (NT)


If a person dies without making provision for their spouse under their will, the process of administering their estate can be difficult. Any person who has been left without adequate provision from their spouse’s estate may make a family provision claim. This article deals with family provision claims by spouses in the NT.

Am I eligible to make a family provision claim?

In the Northern Territory, family provision is covered by the Family Provision Act 1970.  Under Section 7 of that act, eligible persons for family provision include:

  1. The husband of the deceased;
  2. The wife of the deceased;
  3. The domestic partner of the deceased;
  4. A former de facto partner or former spouse of the deceased.

A former de facto partner or spouse is only entitled to receive a provision from an estate if they were maintained by the deceased immediately prior to their death.

De facto partners and family provision claims

NT law defines ‘de facto relationship’ much more broadly than other jurisdictions.  In determining whether two people are in a de facto relationship, the court considers whether they were in a marriage-like relationship. In particular, the court considers the following factors:

  1. The duration of the relationship;
  2. Both the nature and extent of common residence;
  3. Whether a sexual relationship exists;
  4. The degree of financial dependence or interdependence, and any arrangements for financial support, between them;
  5. The ownership, use and acquisition of property;
  6. The degree of mutual commitment to a shared life;
  7. The care and support of children;
  8. The performance of household duties;
  9. The reputation and public aspects of the relationship.

It does not matter if the two persons are of different genders or of the same gender. It does not matter if either person is married to another person or if either person is in another de facto relationship.

Two-stage test

In assessing any claim by a spouse for further and better provision from the estate of their partner, the court applies a two-stage test.

First, the court considers whether the deceased had a moral obligation to provide for the proper and adequate maintenance, education and advancement in life of the applicant (the jurisdictional question).

Second, it considers what level of provision is necessary to provide for the adequate and proper provision of the applicant.

Usually, it cannot be disputed that a spouse will meet the jurisdictional question, particularly where the relationship has been a long one.  Many claims between spouses are not contested on the jurisdictional question, but rather on the amount that should have been awarded and whether the beneficiary has received that amount under the will.

Amount of provision for spouses

Case law has established throughout Australia that a spouse is entitled to a roof over their head and a nest egg sum to protect them against the vicissitudes of life. The question often arises of what is the nature of ‘a roof over their head’ and what is the appropriate size of the nest egg.

In large estates, an absolute interest in real property can be provided for a spouse, while still taking into account the needs of the remaining beneficiaries of the estate. However, with smaller estates it is often appropriate for a life interest in the property to be given to the surviving spouse. In particular, the courts have recently been inclined to provide the portable life interest which enables this pass to reside in the property for the remainder of the spouse’s life or until the spouse required to enter into aged care accommodation. This then enables the estate to pass to the beneficiary under the will as was intended by the will-maker.

The size and nature of the nest-egg also depends upon the financial resources of the surviving spouse and the nature of the relationship.  The Family Provision Act 1970 requires that the court shall take into account any benefits conferred on applicant spouse and the character and conduct of the applicant spouse.

Competing Beneficiaries

In the assessment of claims by spouses, it is important to consider any competing claims against the deceased’s estates. However, spouses are often successful in obtaining an order for the proper maintenance and support as the primary claim to be considered.

Summary

It is the deceased person’s primary obligation to make adequate and proper provision for the spouse from their estate. If adequate and proper provision has not been made for a spouse, a Territorian spouse should make a claim under the Family Provision Act for further and better provision.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

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