What it does
The Family Provision Act 1970 (NT) creates a statutory route for specified family members and dependants to apply to the Supreme Court for provision from a deceased person’s estate where the will or intestacy does not make adequate provision for their proper maintenance, education and advancement in life. The Act defines who may apply (s 7), imposes a primary time limit of 12 months after grant of administration (s 9(1)), and gives the Court a discretionary power to order such provision as it thinks fit after considering the circumstances of the case (s 8(1)). Orders can specify amounts, conditions and limits (s 11(1)), may be structured as lump sums, periodical payments or a mix, and may be funded from identified parts of the estate including property subject to a power of appointment where special circumstances exist (s 13(1)).
Mechanically, orders made under the Act operate as if they were codicils to the deceased’s will executed immediately before death (s 16(1)), and in the case of intestacy they function as modifications of Division 4 of Part III of the Administration and Probate Act 1969 (s 16(2)). The Act also provides for class funds to hold and administer monies for multiple beneficiaries (s 12), for the Court to require undertakings or security where administration was granted on a presumption of death (s 14), and for certified copies of orders to be endorsed on or annexed to probate or letters of administration (s 18). The Act invalidates any mortgage, charge or assignment of an order without the Court’s permission (s 19).
The Act modifies estate distribution dynamics by authorising the Court to order provision out of property already distributed, subject to protection for proper distributions to persons who were dependent on the deceased (s 20). Administrators who distribute in compliance with the notice requirements under the Administration and Probate Act 1969 receive protection from suit (s 21). The Court may refuse to make an order based on the applicant’s character or conduct (s 8(3)), and it must have regard to the testator’s reasons, including statements the testator may have signed (s 22).