Family Provision Act 1970

This Act may be cited as the Family Provision Act 1970.

This Act shall come into operation on a date to be fixed by the

Administrator by notice in the Gazette.

The Testator's Family Maintenance Ordinance 1929 and the

Testator's Family Maintenance Ordinance 1931 are repealed.

In this Act unless the contrary intention appears:

Aboriginal means a person who is a member of the aboriginal race of Australia.

administration means probate, granted in the Territory, of the will of a deceased person or letters of administration, granted in the Territory, of the estate of a deceased person, whether with or without a will annexed, and whether granted for general, special or limited purposes and includes an order to collect and administer the estate of a deceased person granted to the Curator of

Deceased Estates or the Public Trustee.

administrator, in relation to the estate of a deceased person, means a person to whom administration has been granted in respect of the deceased person.

deceased person includes a person in respect of whose estate there has been made a grant of administration expressed to be made on presumption of the death of the person.

intestate has the same meaning as in section 61(1) of the Administration and Probate Act 1969.

the Court means the Supreme Court.

will includes a codicil.

Where probate of a will or letters of administration of an estate granted outside the Territory is sealed with the seal of the

Court in pursuance of section 111 of the Administration and

Probate Act 1969, the probate as so sealed or the administration as so sealed, as the case requires, shall be of the will, or letters of administration of the estate granted in the

Territory on the date on which it was so sealed.

Subject to this section, this Act applies in relation to the estates of all deceased persons, including a person who dies before the commencement of this Act.

Where the whole or any part of the estate of a deceased person has been lawfully distributed before the commencement of this Act, a person is not entitled to make application under this Act for provision out of that estate or the part of the estate that has been so distributed, as the case may be, unless he would have been entitled to make an application for provision out of the estate or that part of the estate under the Testator's Family Maintenance

Ordinance 1929 if that Ordinance had continued in force.

An order made by the Court under the Testator's Family

Maintenance Ordinance 1929 that was in force immediately before the commencement of this Act continues in force and has effect as if it were an order made under this Act.

Proceedings instituted under the Testator's Family

Maintenance Ordinance 1929 that were pending immediately before the commencement of this Act shall be deemed, on and after the date of commencement of this Act, to have been instituted under this

Act and this Act applies to and in relation to those proceedings.

Where an appeal has been or is instituted from a judgment of the

Court in proceedings instituted under the Testator's Family

Maintenance Ordinance 1929 and the appeal has not been finally disposed of before the commencement of this Act, the

Testator's Family Maintenance Ordinance 1929 continues to apply to and in relation to that appeal.

Subject to this section, each of the following persons is entitled to make application to the Court for provision out of the estate of a deceased person:

a spouse or de facto partner of the deceased person;

a former spouse or de facto partner of the deceased person;

a child of the deceased person;

a stepchild of the deceased person;

a grandchild of the deceased person;

a parent of the deceased person.

A person, being:

a former spouse or de facto partner of a deceased person; or

a stepchild of a deceased person,

is not entitled to make an application to the Court for provision out of the estate of the deceased person unless the person was maintained by the deceased person immediately before his or her death.

A grandchild of a deceased person is not entitled to make an application to the Court for provision out of the estate of the deceased person unless:

the parent of the grandchild who was a child of the deceased person died before the deceased person died; or

one or both of the parents of the grandchild was or were alive at the date of the death of the deceased person and the grandchild was not maintained by that parent or by either of those parents immediately before the death of the deceased person.

A parent of a deceased person is not entitled to make an application to the Court for provision out of the estate of the deceased person unless:

the parent was maintained by the deceased person immediately before his death; or

the deceased person was not survived by a spouse or de facto partner or any of the children of the deceased person.

For the purposes of this section, a person shall not be regarded as having been maintained by the deceased person immediately before his death unless:

there was in force at that time an order of a court requiring the deceased person to pay maintenance to or for the benefit of the other person;

the deceased person was, at that time, whether under an agreement in writing or otherwise, maintaining that other person or making a contribution to the maintenance of that other person, being a contribution that, in all of the circumstances, can be regarded as other than a nominal contribution; or

a court would, if the deceased person were still living, have power to make an order requiring the deceased person to pay maintenance to or for the benefit of the other person.

For the purposes of this section, a child of the deceased person born alive after the death of that person shall be regarded as having been born before the death of the deceased person.

Subject to this Act, upon application made by or on behalf of a person entitled to apply to the Court under section 7, if the Court is satisfied that adequate provision is not available, under the terms of the will of a deceased person or under the law applicable on the death of the person as an intestate or under the will and that law, from the estate of the deceased person for the proper maintenance, education and advancement in life of the person by whom, or on whose behalf the application is made, the Court may, in its discretion and having regard to all the circumstances of the case, order that such provision as the Court thinks fit be made out of the estate of the deceased person.

In considering the adequacy of the provision available from the estate of the deceased person for a person who has made application for provision out of the estate of the deceased person, the Court shall regard any benefits conferred upon that person or another person by the exercise, whether expressly or otherwise, by the deceased person by his will of a general or special power of appointment as forming part of the provision available from the estate of the deceased person for the person upon whom those benefits are conferred.

The Court may refuse to make an order in favour of a person whose character is such, or whose conduct is or has been such, as, in the opinion of the Court, disentitles him to the benefit of an order.

The Court may regard an application for provision out of the estate of a deceased person by one person as an application made on behalf of all the persons entitled to make applications for provision out of the estate of the deceased person.

Subject to subsection (2), an application for an order under section 8 shall be made within a period of 12 months after the date on which administration in respect of the estate of the deceased person has been granted.

The Court may, after hearing such of the persons affected as the

Court thinks necessary, extend the time within which an application may be made under section 8.

An extension of time in pursuance of this section may be granted:

upon such conditions as the Court thinks fit; and

whether or not the time for making an application has expired.

An application for the extension, under this section, of the time within which an application for provision out of the estate of the deceased person may be made under section 8 may not be made after the estate of a deceased person has been lawfully and fully distributed.

An application for provision out of the estate of a deceased person shall, for the purposes of this section, be deemed to have been made on the day upon which the notice of motion or other document instituting the application is filed.

Where an application has been made to the Court for provision out of the estate of a deceased person, the applicant shall cause notice of the application to be served on each person who is an administrator of the estate of the deceased person.

The Court may:

of its own motion and either before or during the hearing of an application for an order for provision out of the estate of a deceased person; or

on an application made by the applicant for such an order or by the administrator of the estate of the deceased person,

order that notice of the application be served on such persons as the

Court thinks fit.

An order under section 8 shall specify the amount and nature of the provision to be made for the person in whose favour the order is made and may specify such conditions, restrictions and limitations subject to which the provision is to be made as the Court thinks fit to impose.

Unless the Court otherwise orders, the burden of the provision ordered by the Court to be made for the benefit of a person shall, subject to subsection (1), be borne between the persons beneficially entitled to the estate of the deceased person (other than the person or persons in whose favour an order or orders under this Act is or are made), in proportion to the values of their respective interests in the estate.

Where persons are successively entitled to estates or interests in any property that is settled by the will of the deceased person, those estates and interests shall not, unless the Court otherwise orders, be valued separately but the proportion of the provision required by subsection (2) to be borne by those persons out of those estates and interests shall be raised or charged against the corpus of that property.

Without limiting the powers of the Court under this Act, the

Court may order that an amount specified in the order be set aside out of the estate of the deceased person and held on trust as a class fund for the benefit of 2 or more persons specified in the order in whose favour orders for provision out of the estate of the deceased person have been made.

Where an amount is ordered to be held in trust as a class fund, the trustee of the fund shall invest so much of the amount as he does not apply in accordance with this subsection and may, subject to such directions or conditions as the Court gives or imposes, but otherwise as he thinks fit, apply the whole or any part of the income and capital of the fund for or towards the maintenance, education or advancement in life for the benefit of the persons for whose benefit the class fund is held, or any one or more of them to the exclusion of the other or others of them in such shares and in such manner as the trustee, from time to time determines.

Where one or more of the persons for whose benefit moneys are held in trust as a class fund dies, a reference in subsection (3) to the persons for whose benefit moneys are held in trust as a class fund shall, after the death of that person, be read as a reference to the survivor or survivors of those persons.

Where an amount is set aside as a class fund, the administrator of the estate of the deceased person shall, unless the Court otherwise orders, be the trustee of the class fund.