Wills serve as a final declaration of a person's intentions regarding the distribution of their estate upon death. In New Zealand, the law upholds testamentary freedom, allowing individuals to distribute their assets as they wish. However, this freedom is not absolute. Several legal mechanisms exist to challenge the validity or fairness of a will. The three most common legal avenues for challenging wills in New Zealand exist under the Law Reform (Testamentary Promises) Act 1949, the Family Protection Act 1955, and the Wills Act 2007. Each of these Acts provides distinct grounds and procedures for contesting a will, reflecting societal recognition of fairness, dependency, and the testator’s obligations.

In this article, we explore the grounds for challenging wills under each of these Acts, the legal principles they enshrine, key case law, and practical considerations for claimants.

Testamentary Promises Act 1949

Purpose and Scope

The Law Reform (Testamentary Promises) Act 1949 (TPA) exists to uphold promises made by a deceased person to reward another individual—usually a family member, friend, or caregiver—for services rendered during their lifetime. Such promises, whether express or implied, are intended to be fulfilled through a provision in the deceased’s will. When these promises are not honoured, the Act allows claimants to enforce them against the estate.

Grounds for Challenging a Will

The grounds for challenging a will under the TPA involve proving:

• Provision of Services or Work: The claimant provided services, work, or benefits to the deceased during their lifetime.
• Existence of a Promise: There was an express or implied promise by the deceased to reward the claimant through a testamentary provision.
• Non-fulfilment of Promise: The deceased failed to make the promised provision or otherwise compensate the claimant.
• Causal Connection: The services were rendered in reliance on the deceased's promise.

Once these elements are established, the claim becomes enforceable against the estate.

Judicial Considerations

In assessing any claim, the Court assesses the reasonableness of the claim, considering:

• The circumstances in which the promise was made
• The value and nature of the services rendered
• The value of the promised reward or provision
• The total value of the estate
• Any other claims or competing interests on the estate

The aim is to strike a balance between fairly compensating the claimant and protecting the rights of other beneficiaries.

Compensation

Where a claim under the TPA is successful, the court typically awards monetary compensation rather than specific assets. The amount awarded is determined based on:

• The value of the services provided
• The extent of the promised provision
• The size of the estate
• Reasonableness in the context of other beneficiaries' interests

The purpose is not to enforce the exact terms of the promise rigidly but to ensure that claimants are reasonably compensated for their contributions.

Family Protection Act 1955

Purpose and Principles

The Family Protection Act 1955 (FPA) allows certain close family members to contest a will on the basis that it fails to make adequate provision for their proper maintenance and support. This Act recognizes the moral duty of a testator to provide for their dependants.

Eligible Claimants

The FPA restricts eligibility to specific categories of persons, including:

• Spouse or civil union partner
• De facto partner (living together at the date of death)
• Children (including legally adopted children)
• Grandchildren
• Stepchildren (under certain conditions)
• Parents (if they were being maintained by the deceased)

Grounds for a Claim

A claimant must show:

• Inadequate Provision: That the will fails to make adequate provision for their proper maintenance and support.
• Moral Duty: That the deceased owed a moral duty to provide for them.

Judicial Considerations

Courts assess claims based on several factors, including:

• Financial need of the claimant
• Size and nature of the estate
• Relationship between the claimant and the deceased
• Conduct of the claimant
• Any other competing claims on the estate

Quantum of Awards

Awards under the FPA can range from nominal sums to substantial portions of the estate, depending on the particular circumstances of each case. Courts are cautious to balance the deceased’s testamentary intentions with their obligations to family.

Wills Act 2007

Purpose and Relevance

The Wills Act 2007 governs the formalities of making, altering, and revoking wills in New Zealand. Challenges under this Act generally pertain to the validity of the will itself, rather than its contents.

Grounds for Challenging Validity

Common grounds include:

• Lack of Testamentary Capacity
• Undue Influence
• Lack of Compliance with Formalities

Lack of Testamentary Capacity

When making a will, a testator must have the mental capacity to understand:

• The nature of making a will
• The extent of their estate
• The moral claims of those who might expect to benefit

If a testator is found to lack testamentary capacity, the will may be held to be invalid.

Undue Influence

If the will was made under undue pressure or coercion, it may be invalidated. Proving undue influence requires demonstrating that the testator's free will was overborne.

Lack of Compliance with Formalities

The Wills Act specifies formal requirements:

• The will must be in writing
• Signed by the testator or by someone else in their presence and by direction
• Witnessed by at least two people present at the same time

Failure to meet these requirements may invalidate the will, although Section 14 provides a "saving provision" allowing courts to validate a non-complying will if satisfied it reflects the testator’s intentions.

Practical considerations when challenging a Will

Time Limits

Claims under the FPA and TPA must generally be filed within 12 months of probate being granted. Extensions may be possible but are at the court’s discretion.

Costs

Litigation costs can be significant, and courts often have discretion to award costs from the estate. However, unsuccessful claims may result in personal liability for costs, making legal advice crucial before proceeding.

Alternative Dispute Resolution

Given the personal nature of family disputes, many cases are settled through mediation or negotiation to avoid the expense and emotional toll of litigation.

Recent trends and developments

New Zealand courts have increasingly emphasised balancing testamentary freedom with the moral duties to family and dependents.

This includes a growing recognition of non-traditional family arrangements, including de facto relationships and blended families, reflected in a broader interpretation of eligible claimants under the FPA.

Furthermore, the courts have adapted to societal changes, such as gender equality, and cultural values (such as Tikanga).

Conclusion

Challenging a will in New Zealand is a complex process, and there are strict procedural obligations which must be adhered to in order to bring a valid claim.

If you're unsure about your entitlement under a will or have questions about the strength of your claim, it's crucial to seek legal advice. Our Trusts and Private Clients team can help you assess your eligibility and guide you through the process, ensuring your rights are protected.