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Individual rights & freedoms

Challenges to your will after you die

Promises you made during your lifetime

When can someone make a claim under the Law Reform (Testamentary Promises) Act?

Law Reform (Testamentary Promises) Act 1949, s 3

Anyone can make a claim under the Law Reform (Testamentary Promises) Act 1949 if you have promised to leave that person something in your will in return for services rendered or work done, and you have not kept that promise. For example, the person may have taken care of you when you were ill or looked after your property, and in return you may have promised to provide for the person in your will.

It may not be necessary to prove that a promise was made expressly. The court may be prepared to infer from the surrounding circumstances that there was a promise.

Note: It can sometimes be difficult to prove that a promise was made. Evidence can be oral or written; for example, letters. Previous wills can also be evidence of the will-maker’s intentions.

What are the grounds for a claim against my estate?

Law Reform (Testamentary Promises) Act 1949, s 3

The claimant must show that they provided services or performed work for you in your lifetime and that you made an express or implied promise to reward the claimant for the services or work by making some provision for the claimant when you died.

How will the court decide?

Law Reform (Testamentary Promises) Act 1949, s 3

The court will consider all the circumstances of the case, including, in particular:

  • the circumstances in which the promise was made and the services were rendered or the work was performed
  • the value of the services or work
  • the value of what was promised
  • the amount of the estate
  • the nature and amounts of the claims against the estate by other people.

What can the court do?

Law Reform (Testamentary Promises) Act 1949, s 3

The court can award the claimant payment out of the estate that is reasonable, considering all the circumstances of the case.

Is there a time limit on making a claim?

Law Reform (Testamentary Promises) Act 1949, s 6

A claim must be filed in the court within 12 months of the grant of probate. The court can extend this time frame, but not if the estate has already been distributed.

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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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