The Administration and Probate Act (NT) 1969 (APA) is the primary legislation governing the legal framework for administering deceased estates in the Northern Territory. Executors and administrators are responsible for protecting the estate’s assets, settling debts, and distributing property under the Will. If no valid Will exists, they follow the rules of intestacy under the APA. Given the procedural complexity, legal advice is often essential.
Locating the Will
The first step is to thoroughly search the deceased’s personal belongings and inquire with professionals such as the deceased’s solicitor, accountant, or Public Trustee. If the plaintiff can’t locate the Will, the deceased is presumed to have died intestate. The distribution of the estate follows the intestacy provisions of the APA. If the executor finds an original Will, they keep it intact and unaltered to help in the probate process.
Role of the Executor or Administrator
The executor (if there is a Will) or administrator (in intestacy) is responsible for:
- Identifying and securing the estate’s assets;
- Notifying relevant institutions (e.g. banks, Centrelink, the ATO).
- Confirming all liabilities and outstanding obligations.
- Preparing a complete inventory of the estate’s assets and personal effects.
The Grant of Representation
A grant of representation is the Supreme Court’s formal authority permitting a person to manage and distribute the estate. Acting without a grant exposes individuals to liability for loss suffered by beneficiaries or creditors.
There are three primary types of grants:
- Grant of Probate – where the Court appoints a named executor under a valid Will.
- Letters of Administration – where the deceased died intestate and a next of kin applies.
- Letters of Administration with the Will Annexed – where a Will exists but can’t be proved ordinarily. If only a copy is available or if the Will is partially invalid.
Before making a grant of Probate, the deceased’s property technically vests in the Public Trustee under ss 49–52 APA. A grant is typically required where the deceased:
- Owned significant shareholdings.
- Had over $20,000 in bank accounts or managed investments;
- Held real property in the NT;
- Had superannuation benefits to be paid into the estate;
- Owned significant shareholdings.
Approach Informal administration for small estates below $20,000 cautiously. As the administrator has risk of personal liability.
The Probate Application Process
Order 88 of the Supreme Court Rules (NT) 1987 provides for Applications for Probate.
- Publication of a Notice of Intended Application for Probate (Form 88B) is required in the NT News.
- If applicable, it must also be published in another local newspaper where the deceased resided. This is necessary if the location is over 200 km from Darwin.
- After 14 days, the applicant can apply to the Supreme Court Registry with supporting affidavits.
- Pay the required filing and search fees.
Part 3 of Order 88 of the Supreme Court Rules (NT) outlines further procedural details. Executors must follow these rules to secure the grant. They must also protect themselves from liability.
Probate Applications in the Northern Territory Involving a Copy of a Will
The admission of a Will to probate is a foundational step in administering a deceased estate. In the Northern Territory,with the original Will available, the applicant can seek Probate of a copy. This process engages evidentiary and procedural considerations, particularly where questions arise whether the Will was lost, destroyed, or revoked.
A grant of Probate is issued by the Supreme Court. It confers authority upon the named executor to collect and distribute the deceased’s assets under the Will. While not all estates need Probate, it is typically necessary where the deceased held significant assets in their sole name. If the executor can’t produce the original Will, then the applicant must prove the validity of the copy. The applicant must also rebut the presumption of revocation that may otherwise arise.
This post describes the procedural steps needed to obtain a grant of Probate in such circumstances including
an affidavit from a legal practitioner affirming to the copy’s authenticity.
the legal threshold for admitting a copy of a Will.
Rebuttal of the presumption the deceased intended to revoke the original Will.
Recently illustrated In the Estate of Norton [2025] NTSC 51 decision. The Northern Territory Supreme Court considered whether a lost Will could be proven and admitted via a certified copy.
Chronology
10 August 2022 – Will Executed:
The deceased had executed a valid Will in compliance with the formal requirements. The Will divided her estate equally between her two daughters. Under the Administration and Probate Act (NT) (APA), they are entitled to it if she dies intestate.
Executor Appointments and Renunciation:
Under the terms of the Will, the deceased appointed her daughter, Jane. Her son-in-law, David Andrew Temple, was appointed joint executor. Mr Temple renounced his appointment. Jane proceeded with the application for Probate, filing all the required affidavits and supporting documents.
August to November 2024 – Will Lost During Relocation:
Jane’s mother died. Jane travelled from her home in Queenstown, Tasmania, to Alice Springs. She went to care for the deceased. Later, she returned home. The original Will was in an envelope with probate documents during this period. It was lost between 10 and 18 November 2024 during her relocation.
25 July 2024 – Death of the Deceased:
Patricia Elsie Norton died at 87. She was unmarried at the time of her death. She is survived by two daughters: Jane Bernadette Miller (50) and Anne-Marie Temple (53). They were also her only issue.
The plaintiff could not locate the original Will despite extensive searches of her personal property and vehicles. However, Jane retained a certified copy of the Will. After sighting the original, a Commissioner for Oaths certified it as a true copy. That certified copy was submitted to the Supreme Court Registry on 9 August 2024 as part of the original probate application.
Rebutting the Presumption of Revocation
In the circumstances after the testator’s death, a legal presumption arises that the Willmaker destroyed the Will to revoke it. This presumption of revocation is rebuttable. The onus falls on the applicant to prove that the deceased did not intentionally destroy the Will and that the original has been lost or misplaced.
Relevant authorities include:
Cahill v Rhodes [2002] NSWSC 561
Curley v Duff (1985) 2 NSWLR 716
Estate of Manning [2015] NTSC 21
Proud v Proud [2012] WASC 134
Estate of Ponikvar [2016] SASC 95
Evidence Act 1939 (NT)
In civil cases, the court applies the balance of probabilities standard — meaning a fact is accepted as true if it is more likely than not.
Under s 140 of the Evidence Act of 1939 (Northern Territory), a case is proven if the court is satisfied on this standard.
When deciding whether this threshold is met, the court may weigh:
- The nature of the claim or defence.
- The nature of the subject matter.
- The seriousness of the allegations.
Court Findings and Orders
The Court was satisfied based on the evidence. The original Will had been lost during Jane’s relocation. It was not destroyed by the deceased to revoke it. The applicant has rebutted the presumption of revocation, arguing that the original document has been lost or misplaced.
The Court ordered:
- The admission of the certified copy of the Will dated 10 August 2022 to probate;
- A grant of Probate of the estate of Patricia Elsie Norton to Jane Bernadette Miller as sole executor;
- Payment of the costs of the application out of the estate.
Key Takeaway:
When an executor cannot locate the original Will, the Northern Territory Supreme Court can admit a copy of a Will to probate.
The applicant must rebut the presumption of revocation.
The Court emphasises preserving the original Will in the Estate of Norton [2025] NTSC 51 and understanding the evidentiary burden when relying on a certified copy.