Contesting a Will in New Zealand

What does it mean to contest a will? The answer depends on why you are unhappy about it.

This article explains the five most common reasons to contest a will in New Zealand:

The will-maker failed to make adequate provision for a family member’s proper maintenance and support, in breach of a moral duty to that family member. In this scenario, the person aggrieved might be able to pursue a claim against the estate of the deceased (Estate) under the Family Protection Act 1955 (Family Protection Act).
The will-maker was unduly influenced by someone at the time they made the will. If such undue influence exists, the High Court can declare the will to be invalid.
The will-maker did not have testamentary capacity at the time they made the will. As with undue influence, if the Court is satisfied that a person lacked the mental capacity to make a will, the will can be set aside.
A person provided services or performed work for the will-maker based on an express or implied promise that the person would receive something from the Estate. In this scenario, the person aggrieved might be able to claim against the Estate under the Law Reform (Testamentary Promises) Act 1949 (Testamentary Promises Act).
The will is not a valid because it fails to meet the formal requirements for wills set out in the Wills Act 2007 (Wills Act).

Family Protection Act

The Family Protection Act allows for family members of a will-maker to claim against an Estate for breach of moral duty, if the claimant believes they have not been properly provided for in the deceased’s will.

Eligible claimants under the Family Protection Act include:

the will-maker’s spouse or civil union partner;
a de facto partner who was living in a de facto relationship with the deceased at the time of their death;
the will-maker’s children;
the will-maker’s stepchildren who were being maintained wholly or partly, or were legally entitled to be maintained wholly or partly, by the deceased before their death; and
the will-maker’s parents.

Most commonly, claims will be brought by the children of the deceased will-maker for failure to provide proper maintenance and support. This is because there is a strong moral duty for a parent to provide for their children, which extends to the making of adequate provisions for proper maintenance and support in their will. For more information on sibling will contests, see our article Will Contests Between Siblings.

A claim for proper maintenance and support under the Family Protection Act must be made within 12 months from the grant of probate. This deadline can be extended by applying for leave to the Court. If a claim is being made by an administrator on behalf of a claimant who is under 18 or lacks mental capacity, then it must be made within two years from the grant of probate.

It is advised that claimants make a claim as soon as possible from probate being granted to avoid the assets of the Estate being no longer available to meet a potential award. In practice, this can be challenging. This is because the administrator can distribute the assets of the Estate after six months of probate being granted if they have not received a notice of claim.

The success of these claims is highly fact dependent. There are several factors that contribute to whether a claim for proper support and maintenance will be successful or not. These include the age, financial position, and health of the claimant, any competing moral claims, the size of the Estate, the relationship between the claimant and the will-maker, and more.

The Court has broad discretion to order adequate provision from the Estate, having regard to the above factors. It is difficult to predict an exact amount for an award, as this is determined on a case-by-case basis.

Undue Influence

Undue influence refers to circumstances where a will-maker has been coerced, physically or mentally, by someone else into executing a will. If undue influence is found, then the validity of the will’s contents can be challenged. This can lead to the entire will, or part of the will, being set aside.

Not all influences on a will-maker are necessarily undue influences. Gratitude for past services, persuasion, or taking pity on someone’s economic circumstances, for example, can be valid and fair influences for a will-maker to consider when making their will.

Anyone who suspects that a will-maker was subject to undue influence can bring a claim in Court, even if they are not a beneficiary of the will. Such claims should be made as soon as possible, ideally before probate is granted. If probate has already been granted, then a claim must be made within 12 months of it being granted.

In determining whether the influence exerted on the will-maker was undue, the key question is whether the terms of the will are consistent with the actual wishes of the will-maker. Evidence given by a claimant could show that:

the will leaves property in a manner that is not consistent with the will-maker’s wishes. This could mean if close family members were left out in favour of others without obvious explanation, when said family members were included in a previous will;
the will-maker was highly dependent on, or trusted, the person who exerted the influence;
the will-maker’s mental and physical health made them more susceptible to undue influence; or
the person who exerted influence on the will-maker benefitted from the distribution of assets that were outlined in the will.

An example of a situation where the Court could find that there has been undue influence is if the will-maker had been deliberately told lies by one family member about other family members, so that the will-maker leaves the other family members out of their will. This could be seen as undue influence, as the will-maker was highly dependent on the family member who exerted the influence.

A claim for undue influence is often difficult to prove. This is because the will-maker, who is the most important witness in the claim, is deceased. Instead, claimants will often have to rely on witness evidence given by those were close to the will-maker at the time of them making their will, such as family, close friends, medical professionals, and more. Evidence used in undue influence claims must satisfy the Court that this undue influence caused the will-maker to act in a way contrary to their intentions and their own free mind when drafting and executing their will.

If a claim for undue influence is successful, the Court can determine that either the entirety of a will, or part of a will, is invalid. If the entirety of a will is invalid, then a previous will made by the will-maker will be validated instead. If there is no previous will, the laws of intestacy will instead apply.

Testamentary Capacity

Under most circumstances, the will-maker is assumed to have the mental ability to understand the contents of, and make, a will. This is known as testamentary capacity. However, if the will-maker lacks testamentary capacity, it can be ground to set aside their will.

Whether a will-maker has testamentary capacity is of high importance in considering the validity of a will because of the effects of any distribution of property of the will could have on any interested parties. For a will-maker to have testamentary capacity, they 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.

Any claims related to the will-maker’s lack of testamentary capacity will have to show evidence that the will-maker did not have the ability to demonstrate one or more of the above factors. This evidence could include that the will-maker was suffering from an illness, such as dementia or Alzheimer’s disease, which affected their mental capacity when they executed their will. If this is the case, expert witness evidence from a medical practitioner would likely be required.

If a claim for lack of testamentary capacity is successful, then the Court can invalidate the will-maker’s current will and may validate a previous will. Alternatively, the Court can make an order as to what happens with the Estate. If there is no previous will, then the laws of intestacy will apply.

Testamentary Promises Act

The Testamentary Promises Act allows for a person to make a claim towards an Estate if that person was promised part of the Estate in return for work or services they provided the will-maker, and that promise was not kept. In such cases, the Court can compensate the claimant out of the Estate for the work that they have done.

Similar to making a claim under the Family Protection Act, a claimant must bring an application within 12 months of probate being granted. However, it is advisable that claimants make an application as soon as practicable to avoid the assets of the Estate being distributed before a potential award can be made.

For a person to bring a claim under the Testamentary Promises Act, they must show that:

they provided services or performed work for the will-maker in their lifetime;
an express or implied promise was made by the will-maker to reward them for their services or work by making testamentary provision for them or in another form of compensation; and
the extent to which the will-maker has failed to make that testamentary provision or otherwise compensated the claimant for the provided services or performed work.

Examples of “work” or “services” can include personal care, housekeeping, financial assistance, assistance with properties or business, support and companionship, and more. Services or work done in a family context will have to go beyond what is reasonably expected of a familial relationship to satisfy the standard of “work” or “services” required.

The promise must be made in exchange for services or work and can be made either orally or in writing. The most important part is that the promise was made on the basis of the services or work rendered. If not, a claim under the Testamentary Promises Act will not be successful. In other words, there must a clear link between the services and promise for a successful claim.

If a claim is successful, the Court can make an award from the Estate, having regard to:

the circumstances in which the promise was made;
what services were given, or work was done;
the value of the services or work;
the value of what was promised;
the amount of the estate; and
the nature and amounts of claims against the Estate by other people.

The Court can award reasonable payment out of the Estate to honour the promise by the will-maker, taking into account the above factors. An award can be a payment of a lump sum at the value of what was promised, an order to transfer a promised asset or assets out of the Estate to the claimant, or an order for both.

Wills Act

For a will to be valid, it must follow the formal requirements in the Wills Act. These requirements are there to ensure that the contents of the will reflect the true and actual intentions of the will-maker. If either one of these requirements are not met, it can be grounds to invalidate the will.

The formal requirements for a valid will are that the will is in writing and signed by the will-maker in the presence of two witnesses. There is no requirement for where these signatures must be, but it is recommended that they are at the bottom of the will. In addition, the writing requirement does not have to be in physical pen and paper, only that it is written down in some form.

The process for making a claim to invalidate a will for failing to meet the formal requirements of a will is the same as the process for claims based on undue influence and lack of testamentary capacity.

In making a decision, the Court may consider the form of the will and evidence relating to the signing and witnessing of the will, the will-maker’s testamentary intentions, and statements made by the deceased person.

For a claim of failing to meet the formal requirements to be successful, evidence must be brought by the claimant that points to the lack of testamentary intention as the reason why formal requirements were not met. An example of this could be a witness statement which points to the will-maker did not sign their will because their dissatisfaction with the will’s terms, and which they were unable to rectify before they passed. This may indicate that the current will being invalid based on the lack of formal requirements and testamentary intention.

If a claim to invalidate a will based on lack of formal requirements is successful, the Court can order the will be set aside. If this happens, then a previous version of the will-makers will becomes valid instead. If there is no previous will, then the laws of intestacy apply.

Note that even if a will is non-compliant with the formal requirements of the Wills Act, it can still become a valid will by Court order. Under section 14 of the Wills Act, if the Court is satisfied that the will “expresses the deceased person’s testamentary intentions”, the Court can grant an order declaring that the will is valid. This means that even if the formal requirements of a will are not met, the Court may declare it valid if evidence is shown that the contents of the will represent the will-maker’s testamentary intention.

Caveats

A caveat can be lodged in the High Court to allow the chance for a claimant to challenge the granting of probate of a will. The five reasons listed above are the most common grounds a claimant may lodge a caveat against grant of probate of a will.

A claimant must lodge a caveat under section 60 of the Administration Act 1969 before the granting of probate. This prevents the granting of probate without notifying the claimant, allowing them to challenge the administrator of the Estate as to why probate should not be granted. This challenge involves the claimant showing cause as to why probate should not be granted, typically using a combination of the above grounds as reasons against granting probate.

A caveat will last for one year, unless an application for a grant of probate is made sooner.

The above claims can be made without lodging a caveat, but it is advisable to do so to ensure that a claim is heard once an application for probate is made.

Is Contesting Worth It?

Contesting a will can often be difficult, time consuming, and costly. This is because of the evidentiary burden on the claimant to prove any of the above claims.

When considering contesting a will, the following should be taken into account:

Whether there are valid grounds for contesting the will.
Whether there is sufficient evidence to support the claim.
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 takes to go through the legal process to obtain a judgment. This could take years.
The emotional impact of making the claim, especially on other beneficiaries under the will.
Any alternative options that are available to resolve the matter without making an official claim, such as negotiation or mediation.
The size of the estate. If the estate is small, contesting the will might not be worth it, even if you have a valid claim.

A claim for contesting a will can often be expensive, as the assistance of lawyers is generally recommended, and sometimes required. If any potential award from a claim is less than the expected costs for a claim, then it may not be in the best interests of the claimant to pursue their claim.

Lawyers can help a claimant determine whether or not there are valid grounds to contest a will. Lawyers will look at all the evidence available and assess whether there is a likelihood of success and provide claimants with a general idea of where their claim stands.

Conclusion

Under the Family Protection Act, family members can make a claim for breach of moral duty in failure to provide proper maintenance and support by the will-maker. The Testamentary Promises Act is another way to contest the will, based on the will-maker’s failure to keep a promise made to the claimant for works or services they provided. In addition, a will can be invalidated on the grounds that the will-maker has been subject to undue influence, lacks testamentary capacity, or has not complied with the formal requirements of making their will. These five grounds are the most common reasons to contest a will in New Zealand.