Losing a loved one is always difficult. Unfortunately, an unfavourable or problematic will can make a difficult time even harder.
If you believe there are issues with a will, whether relating to validity, the capacity of the will-maker, undue influence, or inadequate provision for a family member, we can help.
Contesting a will in New Zealand
Contesting a will is often a complex and lengthy process. You need to ensure you have a valid claim and good legal advice. In summary, you need to:
- establish the grounds for contesting the will;
- notify the executor of the will of any claims you might have to prevent them from distributing the estate, if they have not already done so; and
- file a claim with the Family Court or High Court, depending on the nature of the claim;
- attend mediation or a court hearing, depending on whether the dispute can be resolved without having to go to trial.
If you are successful in contesting the will, the court will issue a judgment that must be followed by the executor or administrator of the estate.
Before starting litigation, and in appropriate cases, it is possible to lodge a caveat with the High Court against the granting of administration. This will prevent the executor from distributing the assets according to the terms of the will until the claim is resolved.
Grounds for contesting a will
A will can be challenged or contested on a number of grounds, including the following reasons:
- The will was not validly executed in accordance with the requirements of the Wills Act 2007.
- The will-maker did not have testamentary capacity when they made the will.
- There was undue influence on the will-maker when the will was made.
- A family member of the will-maker believes the will does not adequately provide for them.
- A surviving spouse or partner of the will-maker believes they should receive more share of the relationship property than the provisions made in the will.
- The will-maker made a promise to reward you in the will in return for the work and services you provided to them.
What are the chances of successfully contesting a will?
The chances of successfully contesting a will greatly depend on the specific circumstances of the claim.
Important factors that will determine the success of the claim include:
- Strength of the evidence presented to support the claim, including any medical records, witness testimonies or written communication which could be relevant.
- Whether the grounds for contesting the will are valid.
- The deceased’s intentions, which the court will aim to uphold unless there is good reason not to.
- The ability to present your claim in a skilled manner to increase the chances of success. This is where having an experienced will and estates lawyer comes into play.
Things to consider when contesting a will
If you are considering making a claim against a will, there are several key factors you should consider:
- Whether you have valid grounds for contesting the will. This is often the most important thing to consider.
- What evidence you have to support your claim and whether the court is likely to accept this as adequate.
- The costs involved in making the claim. These costs are usually significant. Sometimes the costs involved can make the will contest not worthwhile.
- The time it will take to go through the legal process of making a claim, which can be months or even years in some cases.
- The emotional impact of making the claim, which can be draining and potentially result in conflicts with family members of other beneficiaries.
- Any alternative options you have to resolve the matter without making an official claim. Sometimes the matter can be resolved through negotiation or mediation which is usually faster and cheaper than going to court, not to mention less stressful.
Will validity
A will is valid if it complies with the Wills Act 2007. A valid will must be:
- in writing;
- signed by the will-maker or another person as directed by and on behalf of the will-maker in his or her presence; and
- witnessed and signed by two people in the will-maker’s presence. These witnesses cannot be beneficiaries under the will.
If a will does not comply with one or more of the above requirements, there are grounds to contest its validity. However, even if the requirements are not met, the High Court can still declare the will valid if it is satisfied that the will expresses the will-maker’s testamentary intentions.
Testamentary capacity
Testamentary capacity refers to the will-maker having the mental ability to make a will. This is important because if a will-maker lacked capacity, and there is sufficient evidence to prove this, the court can declare the will invalid.
The will-maker must be able to:
- understand the nature and effects of the will;
- understand the extent of the property of which they are disposing; and
- comprehend and appreciate any claims a person or persons may have against the estate and how their property will be distributed.
Whether the will-maker was suffering from a mental illness will often be a relevant consideration.
Undue influence
Undue influence refers to a situation where a will-maker has been coerced or pressured to make a will. Not all influences fall under this category. Influence will only be undue where the will does not reflect the true wishes of the will-maker. However, this is a matter to be determined by the court based on the evidence provided.
Claims under the Family Protection Act 1955
Under the Family Protection Act 1955, if you are a will-maker’s surviving spouse or partner, child (including, in some cases, the adopted child or stepchild), grandchild, or parent (in some cases), you can make a claim against the will-maker’s estate if you believe they did not adequately provide for you in their will.
This is because a will-maker has a moral duty to make adequate provision for the proper maintenance and support of close relatives. Once they have discharged their moral duty, they are generally free to do what they like with their assets.
The Family Court will take a range of factors into account before making any award. These include any moral claims from other claimants, your age and financial position, and the size of the estate.
When can you contest a will?
A will can be contested once probate has been granted. However, the exact timeframe depends on the grounds on which you are contesting the will. Some examples of the usual timeframes for contesting a will are as follows:
- Within 2 years from the grant of administration, for a claim under the Family Protection Act 1955 by an administrator made on behalf of a person who is not of full age or mental capacity.
- Within 12 months from the grant of administration, for all other claims under the Family Protection Act 1955.
- Within 6 months after the grant of administration, for a claim under the Property (Relationships) Act 1976.
- Within 12 months after the grant of administration for a claim made under the Law Reform (Testamentary Promises) Act 1949.
Although there are claims that do not have a time restriction, it is better to act as soon as possible to increase your chances of success.
In some cases, a will can be contested before probate is granted. However, the court will not usually hear the dispute until after the grant of probate.
If you believe you have grounds to contest the will, you should inform the executor of the estate of your intentions as soon as possible to prevent the distribution of the estate’s assets before your claim is heard.
Can you contest a will after probate?
Yes, you can contest a will after probate in New Zealand, though the time frame is limited.
Once probate is granted, it means the court has validated the will, and the administrator is allowed to distribute the estate.
However, there are legal avenues for challenging a will after probate has been granted:
- Family Protection Act 1955: If you believe the will did not adequately provide for a family member (such as a spouse, child, or other dependents), you can contest the will under this act. The claim must typically be made within 12 months of probate being granted but can be extended by leave of the Court.
- Law Reform (Testamentary Promises) Act 1949: This act allows someone to contest a will if the deceased made a promise to provide for them in their will exchange for services or support but failed to do so in the will. Like the Family Protection Act 1955, any claims under this act must be made within 12 months after probate has been granted – which can be extended by leave of the Court.
- Testamentary Capacity: If you believe that when the will-maker made a will they lacked the mental capacity to understand the nature and effects of that will, you can make a claim that the will is invalid based on this lack of capacity.
- Validity of the Will: If you believe the will was not properly executed or if there are concerns about the mental capacity of the deceased when the will was made, you can challenge its validity.
- Undue Influence: If you suspect that the deceased was pressured into making or changing their will, or if there is evidence of fraud, you can challenge the will.
For more information on the above, please visit our article on contesting wills in New Zealand.
How much does it cost to contest a will, and who pays?
Contesting a will can be a complex and time-consuming process. The costs involved depend on the claim being made, the process to be followed, the circumstances of the case, and whether there is defended litigation. Costs can vary greatly as a result.
Generally, the party initiating the legal proceedings is responsible for paying their own legal expenses, while the costs of defending a contested will is initially paid by the estate. This means that the executor, who is responsible for managing the estate, can use funds from the estate to pay legal fees and other costs associated with defending the will.
However, the court can determine who should bear the costs of the proceedings. In some cases, the court may order:
- the initiating party to pay the defending party’s legal costs;
- the estate to pay the initiating party’s legal costs; or
- the executor to personally pay the initiating party’s legal costs, if the will is successfully contested and the court finds that the executor defended the will without reasonable cause.
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