Understanding the Courts: Focus on NCAT

If you have ever dealt with a legal matter or simply watched the news, you will have heard references to various courts and tribunals without necessarily knowing what each one does or why it matters to you. For clients navigating wills, estates, and elder law, understanding which body handles which type of dispute can save significant time, money, and stress.

This article gives a plain-English overview of the key forums relevant to estates work in New South Wales, with a detailed look at the NSW Civil and Administrative Tribunal (NCAT) which plays a far more significant role in the lives of older Australians and their families than many people realise.

The Court Hierarchy in NSW: A Brief Overview

NSW has a tiered court system. At a high level, the courts most relevant to wills and estates matters are:

The Local Court handles minor civil disputes and some straightforward debt recovery matters, but it has no jurisdiction over probate or estate disputes.

The District Court deals with civil claims up to $750,000 and serious criminal matters. Like the Local Court, it does not handle probate matters.

The Supreme Court of NSW is the court most directly relevant to wills and estates clients. Its Equity Division handles all probate applications, contested wills, family provision claims, and disputes about the administration of deceased estates. When someone challenges a will, seeks a family provision order, or needs a grant of probate obtained through the court, it is the Supreme Court that decides the matter.

The Federal Court and Federal Circuit and Family Court of Australia handle matters under federal law. In an estates context, this can occasionally arise where superannuation death benefits or cross-border international estate issues are in dispute, though these are specialist areas.

NCAT: What Is It and Why Does It Matter for Estate Planning?

NCAT is not a court in the traditional sense, it is a tribunal, but it exercises significant legal powers and its decisions can have profound consequences for older Australians and their families. For anyone involved in estate planning or elder care, NCAT is arguably as important as the Supreme Court — and far more likely to be relevant during a person's lifetime.

NCAT was established in 2013, consolidating the functions of more than 20 separate tribunals into a single body. It is divided into four divisions, each handling different areas of law.

For wills and estates purposes, the Guardianship Division is by far the most relevant.

The Guardianship Division: What Does It Do?

The Guardianship Division of NCAT deals with matters affecting people who may lack the capacity to make their own decisions, whether due to dementia, acquired brain injury, intellectual disability, or other conditions. It can make two principal types of orders:

Guardianship Orders: A guardianship order appoints a person or organisation to make personal and lifestyle decisions on behalf of someone who lacks capacity. This can cover decisions about where a person lives, what medical treatment they receive, and what services they access. A guardian might be a family member, friend, or where no suitable person is available, the NSW Trustee and Guardian or the Public Guardian.

Financial Management Orders: A financial management order appoints a person or organisation to manage the financial affairs of someone who lacks capacity. This includes decisions about their bank accounts, investments, property, and the payment of bills and expenses. Again, a family member or friend may be appointed, or if that is not appropriate, the NSW Trustee and Guardian may take on the role.

Financial management orders are particularly significant in an estates context because they can affect what happens to a person's assets both during their lifetime and, indirectly, what remains in their estate at death.

When Might NCAT Become Relevant to You or Your Family?

NCAT's Guardianship Division becomes relevant in a number of situations that clients commonly encounter:

When someone loses capacity without having made an Enduring Power of Attorney or Enduring Guardianship. These documents, which allow you to appoint trusted people to manage your affairs if you lose capacity, only work if they are put in place while you still have legal capacity to make them. If a person loses capacity without having these documents in place, there is no automatic legal mechanism for family members to step in and manage their affairs. NCAT is the body that must be approached to fill that gap, through a guardianship or financial management order. This process can be time-consuming and stressful and is one of the most compelling reasons to ensure your estate planning documents are in place early.

When existing arrangements are disputed. Even where an Enduring Power of Attorney or Enduring Guardianship is in place, NCAT has the power to review those appointments. If family members or other concerned parties believe that an attorney is mismanaging a person's finances, acting outside their authority, or taking advantage of the person they are meant to be protecting, an application can be made to NCAT to review, vary, or revoke the appointment.

In elder abuse situations. Financial elder abuse, where a person in a position of trust misuses or misappropriates the assets of an older person, is an unfortunately common problem. NCAT can take protective action where it is satisfied a person with a financial management order or power of attorney is acting improperly. In some cases, this intersects with estate disputes where assets that should form part of an estate have been depleted or misappropriated prior to death.

Medical and treatment decisions. Where a person lacks capacity and there is a dispute about their medical treatment, including decisions about end-of-life care, NCAT can make consent orders and resolve disagreements between family members and treating clinicians.

How Is NCAT Different from a Court?

NCAT proceedings are generally intended to be more accessible and less adversarial than court proceedings. Hearings are less formal, costs are usually lower, and the focus is on achieving practical outcomes for vulnerable people rather than determining rights in a strictly legal sense.

That said, NCAT has real legal powers. Its orders are binding and enforceable, and a failure to comply with a financial management order or guardianship order can have serious legal consequences. NCAT decisions can also be appealed, first to an Appeal Panel within NCAT, and then to the Supreme Court.

Where large or complex estates are involved, or where allegations of fraud, undue influence, or serious elder abuse are made, proceedings may ultimately need to move to the Supreme Court even if they begin at NCAT.

The Relationship Between NCAT and Estate Planning

The single most important takeaway from understanding NCAT's role is this: good estate planning can help you avoid it entirely.

An Enduring Power of Attorney and an Appointment of Enduring Guardian allow you to choose who manages your affairs if you can no longer do so yourself. Without them, your family may face the expense, delay, and uncertainty of NCAT proceedings at an already difficult time.

These documents do not replace a will, which governs what happens to your estate after you die. Rather, they work alongside your will to ensure that both your lifetime and post-death wishes are properly documented and legally effective.

A Note on Capacity

Both NCAT and the Supreme Court grapple with questions of legal capacity in different contexts. Whether a person had the capacity to make a will, sign a power of attorney, or give instructions to a solicitor is a question that arises frequently in estates disputes.

The earlier capacity-related documents are put in place, the more protected both you and your family will be.

How We Can Help

At Harriss Jones Lawyers, we assist clients with the full range of wills and estates matters — from preparing straightforward wills and powers of attorney through to navigating complex estate disputes in the Supreme Court. If you have concerns about an existing estate plan, a family member's capacity, or a situation that may require NCAT involvement, we welcome you to get in touch.

This article is general information only and does not constitute legal advice. If you have a specific legal matter, please contact our office to arrange a consultation.