Can a will be challenged in NZ?

A New Zealand will can be challenged on several distinct grounds. The two categories are claims that attack the validity of the will itself, and claims that accept the will is valid but argue for a different distribution of the estate.

Validity challenges

Validity challenges argue that the document the executor is trying to prove is not the deceased’s true last will. Common grounds are:

• Improper execution — the will does not meet the section 11 requirements of the Wills Act 2007, although section 14 allows the High Court to validate a non-compliant will if satisfied it expresses the deceased’s intentions
• Lack of testamentary capacity — the deceased did not understand the nature of the will, the extent of the estate, or the claims of those who might expect to benefit (the test in Banks v Goodfellow (1870), still applied in New Zealand)
• Undue influence — the deceased was coerced into making the will or specific provisions in it
• Lack of knowledge and approval — the deceased signed without understanding the contents
• Forgery or fraud — rare, but tested in the High Court

Family Protection Act 1955 claims

The most common challenge in practice is a claim under the Family Protection Act 1955. Eligible claimants — spouses, civil union and de facto partners, children, grandchildren whose parent has died, and (in limited circumstances) stepchildren and parents — can ask the court to vary the will if the deceased breached their moral duty to make adequate provision for the claimant.

The court starts from the testator’s freedom of disposition but recognises that close family members are owed at least a baseline of recognition. Recent appellate authority confirms that adult, financially independent children are still entitled to some recognition, though awards have moderated since the 1990s.

Property (Relationships) Act 1976 elections

A surviving spouse, civil union partner, or de facto partner of three or more years can elect under the Property (Relationships) Act 1976 to take their half-share of relationship property instead of what the will provides. The election must usually be made within six months of probate. This is not a “challenge” in the traditional sense but it can substantially alter what the named beneficiaries actually receive.

Testamentary Promises Act claims

A person who provided services or work to the deceased on the promise of being remembered in the will can claim under the Law Reform (Testamentary Promises) Act 1949. The claim is for the value of the services or the amount of the promise, whichever is less.

Time limits

Family Protection Act and Testamentary Promises Act claims must be filed within 12 months of the grant of probate (extensions possible). Property (Relationships) Act elections are typically within six months.

How to reduce the risk

A carefully drafted will, contemporaneous file notes on capacity, balanced provision for close family members, and a letter of wishes explaining unusual provisions all reduce the chance of a successful challenge.

Want help?

If you are concerned a will may be challenged — either as an executor defending it or as a potential claimant — book a free consultation and we will set out your options.