Evolution Lawyers

Dealing With a Will Dispute?

Will Contest & Dispute Lawyers In Auckland

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.

A man and a woman arm wrestling

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.

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.

Get your will dispute sorted now!

Our team of estate lawyers are experts when it comes to contesting wills. Whether you are making a claim against a will, or are defending a will, speak to our team to get the matter sorted by clicking the button below!

Meet the Team

Our Client Testimonials

83 reviews on
Brad Elliott
Brad Elliott
I HIGHLY recommend Evolution Lawyers. Having owned property for many years with two of my best mates it came time to sell. Evolution Lawyers guided us through our first ever sale to a third party. They also helped us through the process of property sales between friends and subsequently helped me personally with the purchase of my own home. With the complex situation of winding up our little property company and the (supposed) need for me to get bridging finance to get it all done, it was Thomas who, on a hunch, went the extra mile by reaching out to an accountant friend to discover and inform us that there was a way to wind the company up without the need for bridging finance. This saved me personally $15,000 - $20,000 by not needing the bridging finance. I cannot be more grateful for this on top of the already professional and exceptional service. Great work by Thomas, George and all the team. Highly recommend!
Kevin Dyer
Kevin Dyer
The Team were awesome. A phone call, email or text away. Being able to ddo all of our interactions remotely via email and teams saved so much time. I would highly recommend using Evolution Lawyers and we certainly will be from now on. Fantastic team of friendly helpful people.
Stella Black
Stella Black
Tamina, Lucas and the team at Evolution Lawyers did an amazing job helping us purchase our new home in the Bay of Plenty. As we are often travelling for work we especially loved that everything could be done virtually. Huge thanks to Lucas, he was superb taking us through each step. Highly recommended!!!
Luann Tapu
Luann Tapu
Tamina consulted us through a difficult family dispute, her astute, efficient and professional manner has been extraordinary. I trust Tamina and her team, and I would highly recommend her services. Finally, we have found a lawyer that is worth her weight in gold !
Danae Malo
Danae Malo
My family recently had the pleasure of working with Evolution Lawyers for the refinance of their mortgage, and we cannot praise them enough for their exceptional service and professionalism throughout the entire process. From the very first interaction, it was evident that Evolution Lawyers truly cares about their clients. Their team was friendly and approachable. The documentation process was streamlined and hassle-free, thanks to the efficiency and expertise of the Evolution Lawyers team. They guided us step-by-step through gathering and organizing the necessary documents, making sure that nothing was overlooked. Their attention to detail and thoroughness gave us confidence that everything was handled meticulously. I highly recommend Evolution Lawyers to anyone seeking assistance with mortgage refinance or any legal matters related to real estate. Their exceptional service, professionalism, and dedication to their clients set them apart. Thanks to their support, the mortgage refinance was a stress-free and positive experience. We are truly grateful for their guidance and would not hesitate to engage their services again in the future.
Brian Cleary
Brian Cleary
Thomas Bloy is fantastic. Very helpful and knowledgeable. I came to him via a recommendation and he delivered an exceptional consult. A firm with ethics that is not looking to bill you for stuff you can do yourself.
Karan Singh
Karan Singh
Just the best lawyers they have honest advice in their 15minute consultation. Trustworthy as they my query was simple and they put me on the right track I will be referring them to all my colleagues.
Juliet Peterson
Juliet Peterson
A huge thank you to Thomas for his invaluable help settling a dispute - without him it wouldn't be sorted. Evolution are very approachable and easy to deal with. Highly recommend.
Natasya Yusoff
Natasya Yusoff
My partner and I have recently had a lot of dealings with lawyers and we were at the end of our tether with them. Thank goodness for Evolution Lawyers! By far Evolution Lawyers was the absolute best to deal with. They were helpful and efficient and gave us useful and timely advice, we truly felt that they we working with us rather than just trying to rack up their timesheet. We will most definitely use them again without a second thought. It's such a relief to finally find a law firm we can depend on. Thank you George, Georgia and Thomas!
Annaleah Fitzgerald
Annaleah Fitzgerald
Great service

We Are Located in the Heart of Auckland

Contact Us

To get your will dispute sorted, give us a call now by clicking the button below or fill out the form and we will get back to you as soon as possible.