Can Someone Challenge a Will in New Zealand?

Many people assume that once a will is signed and witnessed, the instructions are completely set in stone. However, in New Zealand, the law acknowledges that a will does not always reflect fairness, promises made during a lifetime, or the legal duties a person owes to their family.

Whether you have been unexpectedly left out of a parent’s will or you are an executor facing a dispute from a relative, navigating estate challenges is highly stressful. Understanding the legal grounds for contesting a will is the first step toward finding a resolution.

Here is a clear guide on how and why a will can be challenged in New Zealand.

The 4 Main Legal Grounds for Challenging a Will

In New Zealand, you cannot challenge a will simply because you feel the distribution is unfair. The courts respect a will-maker’s right to choose where their assets go. To succeed in a claim, you must base your challenge on one of four specific legal avenues.

1. The Family Protection Act 1955

This is the most common way wills are challenged in New Zealand. The Family Protection Act states that a person has a “moral duty” to provide for the proper maintenance and support of certain close family members.

If a will fails to make adequate provision for these family members, they can apply to the Family Court or High Court for a larger share of the estate. The people eligible to make a claim under this Act include:

• Spouses or civil union partners.
• De facto partners.
• Children (including adopted children).
• Grandchildren (especially if their own parent has passed away).
• Stepchildren and parents (only in very specific circumstances, such as if they were financially dependent on the deceased).

The court will look at the size of the estate, the financial needs of the person claiming, and the nature of their relationship with the deceased before making any adjustments.

2. The Law Reform (Testamentary Promises) Act 1949

Sometimes, people make promises to reward someone in their will in exchange for care, work, or services provided during their lifetime. If the deceased person fails to keep that promise in their final will, the disadvantaged person can make a claim.

Unlike the Family Protection Act, you do not need to be a family member to make a Testamentary Promises claim. You could be a friend, a neighbour, or a caregiver. To succeed, you must prove that you provided a tangible service, a clear promise of a reward was made, and the will failed to deliver on that promise.

3. The Property (Relationships) Act 1976

Surviving spouses and partners have a unique legal choice to make when their partner passes away. Under the Property (Relationships) Act, a surviving partner can choose either “Option A” or “Option B”.

• Option A: They can challenge the will and apply to the court for their legal share of the relationship property. This is usually a 50% split of the joint assets, similar to what would happen in a separation.
• Option B: They can accept exactly what they have been left in the will.

If a will leaves a surviving partner very little, choosing Option A is a powerful way to ensure they retain their fair share of the property they helped build.

4. Challenging the Validity of the Will

A will can be thrown out entirely if it is proven to be legally invalid. If a challenge to a will’s validity is successful, the court may revert to the deceased’s previous will or treat the estate as if no will exists at all.

A will might be declared invalid for several reasons:

• Lack of Testamentary Capacity: The will-maker was not of sound mind (perhaps suffering from severe dementia) and did not fully understand what they were signing.
• Undue Influence: The will-maker was coerced, pressured, or threatened into dividing their estate a certain way.
• Incorrect Execution: The document was not signed and witnessed properly according to New Zealand law.

Strict Time Limits Apply

If you intend to challenge a will, time is absolutely critical.

Legally, you have 12 months from the date Probate is granted to file a claim in court. However, an executor is legally allowed to distribute the estate assets after just 6 months if they have not received formal notice of a claim.

If the assets are given away to the beneficiaries before you make your claim, it becomes incredibly difficult (and sometimes impossible) to claw that money back. If you are considering a challenge, you must seek legal advice immediately to lodge a formal notice and protect your position.

Expert Guidance During Difficult Times

Estate disputes can easily tear families apart and drain the estate’s funds in lengthy court battles. Having an experienced legal team on your side is essential to resolving these issues fairly and efficiently. In many cases, disputes can be settled through private mediation without ever needing a full court hearing.

Are you concerned about the contents of a loved one’s will, or do you need help defending an estate? The specialist estate dispute team at Senior Law Nelson is here to provide clear, compassionate, and practical advice. Contact us today for a confidential discussion about your options.