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Individual rights & freedoms

Challenges to your will after you die

Challenges to the legal validity of a will

On what grounds might the validity of my will be challenged?

The legal validity of your will might be challenged on the ground that, for example:

  • the will was not properly signed and witnessed (see “What requirements must I meet for my will to be valid?” in this chapter)
  • you did not have full mental capacity (were not of sound mind) when you signed the will
  • you did not in fact know what was in the will when you signed it
  • the terms of the will have been affected by some other person’s fraud or undue influence on you.

The legal validity of a will must be challenged in the High Court. This is a complex process and will require the help of a lawyer.

As soon as someone decides to challenge a will, they should file a caveat (warning) with the High Court. The caveat must be lodged prior to the granting of probate. This means that when the executor applies to the High Court for probate of the will, they are required to notify that person and serve copies of the documents on them (see the chapter “A death in the family”, under “Dealing with the deceased’s property”). The person making the challenge is then a respondent to the application and can file documents with the court to make their case that the will is legally invalid.

However, the court can declare a will invalid even after the granting of probate.

Wills Act 2007, s 14

Note: Even if a will doesn’t meet all the formal requirements for a valid will (for example, to have two witnesses), the High Court has a broad power to approve the will so long as the judge is satisfied it expresses the will-maker’s intentions.

What happens if the court declares that my will is invalid?

If the High Court decides that your will is invalid, it means:

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Wills

Where to go for more support

Community Law

www.communitylaw.org.nz

Your local Community Law Centre can provide free initial legal advice and information.

New Zealand Law Society

www.lawsociety.org.nz/for-the-public/common-legal-issues/

Pamphlets

Making a will and estate administration

Dividing up relationship property.

Access pamphlets online or order hardcopies from the New Zealand Law Society.

Phone: (04) 472 7837
Email: pamphlets@lawsociety.org.nz

Ministry of Justice

www.justice.govt.nz/courts/high-court/apply-for-probate-and-get-copy-of-will

This webpage provides some useful information and links on the more technical legal side of getting a copy of a will when a relative has died.

Māori Land Succession

www.maorilandcourt.govt.nz/your-maori-land/succession/

This gives information on how Māori land is dealt with, including how land is dealt with after an owner has passed away.

Public Trust

www.publictrust.co.nz/personal/wills

Phone: 0800 371 471
The Public Trust gives information about things to consider when making a will, setting things up, choosing an executor and estate administration. Facilities are also available for making a will online. You can call them or visit their website to fill out an enquiry form.

Consumer NZ

www.consumer.org.nz/articles/wills

The Consumer NZ website contains good information about wills, including the legal requirements for making a will, and what it’s likely to cost to administer after a person dies.

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