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June 11, 2020
The basic requirements for a valid Will can be found in s 11 of the Wills Act 2009: A Will must be in writing, signed, and witnessed correctly by two independent parties.
Further to these requirements, the testator must be of sound mind, free from duress or influence, and over 18. In certain circumstances, the High Court may declare a document that does not strictly comply with these requirements to be a valid Will.
Provided the validity requirements are met, probate will usually be granted, and the estate will be distributed in accordance with the Will. However, this does not mean that the wishes of the testator are invulnerable to challenge.
Challenges to a Will
These could be made:
1. Under the Family Protection Act 1955 - on the basis the testator had a moral duty to provide for someone and failed to do so;
2. Under the Law Reform (Testamentary Promises) Act 1949 - if the testator promised to provide for someone in their Will in exchange for goods or services and neglected to do so;
3. For lack of testamentary capacity, fraud or undue influence at the time the Will was made;
4. On the grounds the formal requirements for a Will had not been complied with;
5. Under the Property (Relationships) Act 1976 - by a spouse or de facto partner for a greater share of relationship assets;
6. In circumstances where two parties agreed to create mutual Wills and one party has died without having done so;
7. A caveat can be lodged in the High Court to require an executor to formally prove the Will; or
8. In some other circumstances.
Will makers should carefully consider potential claims against their estate and make allowance accordingly.
If you believe you may have grounds to challenge a Will or estate, or if it is time to update your Will or review your estate planning, contact our experienced team on reception@becker.co.nz to discuss your matter further.
Nina Becker
Staff Solicitor
Disclaimer: The information contained in this article is general in nature and not tailored to your personal circumstances. It is only current as at the date posted and should not be relied upon as legal advice. If you require legal advice, please contact us for further assistance.