Contesting a Will: what can I do if I have been left out of a Will?

Shine Lawyers New Zealand - Right Wrong

If you have been left out of a Will, or the assets were not divided as you expected, you may be able to challenge the Will and secure your fair entitlements.

This blog explains who may be able to contest a Will and what the Court looks at when you’re challenging a Will.

Grounds for challenging a Will

Contesting a Will falls under the Family Protection Act 1955.

The wording of the Act is complicated, but simply put, if the deceased person breached their ‘moral duty’ by not making adequate provisions in the estate for the claimant, then the court may rectify that breach.

What is “adequate provision”?

There are two broad categories: namely “recognition” or “support” claims and “actual need” claims.

A recognition claim is where the claimant is not in “actual” financial need, but that the Will has not sufficiently recognised the claimant’s family relationship with the deceased.

An actual need claim is where the claimant is in “actual financial need”. Awards for actual financial need will usually be higher than recognition claims because the court will decide what should be awarded to remedy the claimant’s financial need.

Who can contest a Will?

You may be eligible to challenge a Will if you are:

  • The surviving spouse or de facto partner of the deceased;
  • A child of the deceased;
  • A grandchild of the deceased;
  • A stepchild of the deceased. However, the stepchild has to have been maintained wholly or partly (or were legally entitled to be maintained) by the deceased immediately before death;
  • The parents of the deceased (only in certain cases).

In this blog we explore in more detail the 5 main situations where someone can challenge a Will under New Zealand law.

Factors the Court considers when you are contesting a Will

In determining the size of the award, the court will consider different factors, such as:

  • The size of the estate: the larger the estate, the easier it is for a Court to redistribute money or assets based on the merits of a claim.
  • If there are competing claimants, i.e. the other people that the deceased owed a moral duty to.
  • The nature of your relationship with the deceased. Some relationships are more important than others, particularly with a small estate. For example a parent will owe a greater obligation to a child than to grandchildren or to more distant relatives.
  • The age, ability to earn a living, and present financial status of the claimant. These factors will also be considered in relation to the other people named in the Will.
  • Is the claimant in poor health?
  • If there are disentitling grounds to be left out of the Will, such as estrangement. The court takes a very cautious approach when deciding if the deceased was right to leave a person out of the Will. It will consider who was responsible / reasons for the estrangement and may adjust the moral duty of the deceased accordingly.

Time limit to contest a Will

Under the Family Protection Act 1955 a person wishing to contest a Will must file their claim within 12 months of the grant of administration, which is usually the grant of probate. Sometimes the court can allow for this time to be extended, but not if the estate has already been distributed.

It is important to seek legal advice as soon as possible to protect your right to challenge a Will.

Why Choose Shine Lawyers’ Estate Disputes team?

Our Estate Disputes team offers understanding legal representation, expert knowledge of the process to challenge a Will and will seek to achieve the best possible outcome you.

Contact us today to organise an obligation-free consultation with a member of our Estate Disputes team.

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