When someone passes away, their will outlines how their assets should be distributed. However, not everyone named in a will may agree with its terms, and in some cases, people who feel they’ve been unfairly excluded may want to challenge it. Understanding who has the legal right to contest a will in New Zealand is crucial for anyone considering taking this step.
Who Has the Legal Right to Contest a Will in New Zealand
In New Zealand, not just anyone can challenge a will. The law sets out specific categories of people who have the legal standing to contest a will under the Family Protection Act 1955 and the Law Reform (Testamentary Promises) Act 1949. These laws recognise that certain individuals have a legitimate claim to contest a will if they believe they haven’t been adequately provided for or if promises made to them haven’t been honoured.
Eligible Claimants Under the Family Protection Act 1955
The Family Protection Act 1955 allows certain family members to make a claim if they believe the deceased didn’t make adequate provision for their proper maintenance and support. The spouse or civil union partner of the deceased has the strongest claim under this legislation. Whether you were married, in a civil union, or even in a de facto relationship with the deceased for at least three years, you may have grounds to contest the will if you feel you weren’t adequately provided for. The court will consider factors such as the length of the relationship, your financial circumstances, and what contributions you made during the relationship.
Biological and adoptive children of the deceased may make a claim against a will. Stepchildren may also be eligible, but only where they were being maintained, or were legally entitled to be maintained, by the deceased immediately before death.This includes both minor and adult children. The court recognises that parents have a moral duty to provide for their children, and if a child has been left out of a will or given an inadequate inheritance, they may have grounds to challenge it. Adult children who are financially independent may face more scrutiny than minor children or those with disabilities, but they still retain the right to make a claim.
Grandchildren can also contest a will in certain circumstances, particularly if they were being maintained wholly or partly by the deceased at the time of death, or if their parent (the deceased’s child) has already passed away. The court will examine the relationship between the grandchild and the deceased, including whether the deceased took on a parental role or provided ongoing financial support.
Claims Under the Law Reform (Testamentary Promises) Act 1949
Beyond family members seeking maintenance, another group of people can contest a will based on promises made by the deceased. Under the Law Reform (Testamentary Promises) Act 1949, anyone who performed work or provided services for the deceased based on a promise that they would be rewarded in the will can make a claim. This often applies to situations where someone cared for an elderly person, worked on their property, or provided unpaid labour with the understanding that they would inherit something in return.
To succeed with this type of claim, you must prove that a promise was made, that you performed work or services because of that promise, and that the deceased didn’t fulfil their promise in the will. These cases can be complex because the promise doesn’t need to be in writing, but you’ll need credible evidence to support your claim. This might include witness testimony, correspondence, or evidence of the work you performed.
Grounds for Contesting a Will in New Zealand
Having the legal standing to contest a will is just the first step. You also need to have valid grounds for your challenge. In New Zealand, there are several recognised reasons why a will might be contested, each requiring different types of evidence and legal arguments.
Inadequate Provision Under the Family Protection Act
The most common ground for contesting a will is claiming that the deceased didn’t make adequate provision for your proper maintenance and support. When the court considers these claims, they look at a wide range of factors including your financial needs, your relationship with the deceased, the size of the estate, and any other claims against the estate. The court also considers whether you have any means of your own to support yourself and what your reasonable expectations might have been.
It’s important to understand that “adequate provision” doesn’t necessarily mean equal distribution among all family members. The court has wide discretion to determine what’s fair and reasonable based on all the circumstances. For example, a spouse who was financially dependent on the deceased and has limited earning capacity may receive a larger share than adult children who are financially secure.
Lack of Testamentary Capacity
Another ground for contesting a will is arguing that the deceased didn’t have the mental capacity to make a valid will at the time it was created. To have testamentary capacity, the person making the will must understand the nature and effect of making a will, know the extent of their property, and be able to comprehend and evaluate the claims of potential beneficiaries. If the deceased was suffering from dementia, severe mental illness, or was heavily medicated at the time they made their will, you might have grounds to challenge its validity.
Proving lack of testamentary capacity requires medical evidence and testimony about the deceased’s mental state at the time the will was made. This can be particularly challenging if the will was made some time ago and medical records are limited. However, if you can demonstrate that the deceased wasn’t of sound mind when they signed the will, the court may declare it invalid.
Undue Influence or Coercion
If you believe the deceased was pressured, manipulated, or coerced into making or changing their will, you can contest it on the grounds of undue influence. This often occurs when someone in a position of trust or authority over the deceased uses that position to benefit themselves in the will. Common scenarios include carers, financial advisers, or family members who isolated the deceased from others and influenced them to change their will in their favour.
Proving undue influence can be difficult because you need to show that the deceased’s free will was overborne and that they made decisions they wouldn’t have made otherwise. Evidence might include sudden changes to the will that don’t align with the deceased’s previously stated wishes, suspicious circumstances surrounding the will’s creation, or testimony from people who witnessed the influencer’s behaviour.
Important Considerations When Contesting a Will
Before deciding to contest a will in New Zealand, there are several practical and legal factors you need to carefully consider. Challenging a will is a serious legal matter that can have significant consequences for all parties involved.
Time Limits for Making a Claim
Time is of the essence when it comes to contesting a will. Under the Family Protection Act 1955, you must file your claim within 12 months of the grant of probate or letters of administration. This deadline is strict, and whilst the court has discretion to extend the time limit in exceptional circumstances, you shouldn’t rely on this. If you’re considering contesting a will, it’s crucial to seek legal advice as soon as possible after the death to ensure you don’t miss this critical deadline.
For claims under the Law Reform (Testamentary Promises) Act 1949, you must also file your claim within 12 months of the grant of probate or letters of administration.. Waiting too long to pursue your claim can significantly weaken your position and may result in your claim being time-barred.
The Cost and Emotional Impact of Will Disputes
Contesting a will can be expensive, and these costs typically come out of your own pocket initially, though they may be awarded from the estate if you’re successful. Legal fees can mount quickly, particularly if the case goes to court rather than being settled through negotiation or mediation. You should also consider the potential impact on family relationships, as will disputes often create or deepen rifts between family members that may never heal.
Before proceeding with a claim, it’s worth considering whether mediation or family dispute resolution might offer a less adversarial and more cost-effective path to reaching a fair outcome. Many will disputes in New Zealand are resolved without going to court, saving time, money, and relationships in the process.
The Strength of Your Case
Not every person who’s unhappy with a will has a strong legal case to contest it. Courts in New Zealand recognise that people have testamentary freedom, meaning they have the right to distribute their assets as they see fit. Simply being disappointed with your inheritance or believing you deserve more isn’t enough to succeed in a will contest. You need to have solid legal grounds and credible evidence to support your claim.
Before investing time and money in a legal challenge, it’s wise to have a frank discussion with a lawyer about the merits of your case. They can provide an honest assessment of your chances of success and help you weigh the potential benefits against the costs and risks involved.
Get Guidance on Contesting a Will in New Zealand
Deciding whether to contest a will is a significant decision that requires careful consideration of your legal rights, the strength of your case, and the practical implications of pursuing a challenge. As will lawyers, we can help you understand your rights under both the Family Protection Act 1955 and the Law Reform (Testamentary Promises) Act 1949. Contact Evolution Lawyers team today to discuss your situation and explore your options for contesting a will.