How to Challenge a Will in New Zealand: Your Rights and Time Limits

A parent dies. The will leaves everything to one child — or to a new partner of three years — while other children get nothing. It happens more often than most families expect, and the emotional fallout is severe. But in New Zealand, a will is not the final word. Family members who were morally entitled to be provided for — and were not — have legal remedies. The clock starts ticking the moment probate is granted, and the window is short: 12 months. After that, your options narrow dramatically.

The Four Main Grounds to Challenge a Will

Not every dissatisfied family member has a legal claim. The fact that a will is unfair, or that you expected more, is not by itself a ground to challenge it. New Zealand law recognises four distinct categories of will challenge, and understanding which one applies — if any — is the essential first step.

Family Protection Act Claims: Who Can Claim and What They Can Get

The most common type of will challenge in New Zealand is a claim under the Family Protection Act 1955 (FPA). Section 4 of the FPA imposes a legal duty on the estate of every deceased person to make “adequate provision for the proper maintenance and support” of certain eligible family members.

Who Is Eligible?

The following people can bring an FPA claim:

• Spouse or civil union partner of the deceased
• De facto partner (if the relationship lasted at least 3 years, or there are qualifying circumstances)
• Children (including adult children)
• Grandchildren (in some circumstances)
• Stepchildren who were maintained by the deceased

Siblings, parents, and extended family generally cannot bring an FPA claim.

What “Adequate Provision” Means

This is where FPA claims get complicated — and where much of the litigation focuses. Courts do not simply award a fixed percentage of the estate. They assess what a “wise and just testator” would have provided, taking into account:

• The size of the estate
• The claimant’s financial position and needs
• The nature of the relationship between claimant and deceased
• Contributions the claimant made to the deceased or the estate
• The moral claims of other beneficiaries
• Whether the claimant was maintained by the deceased during their lifetime
• Any benefits already received from the deceased (gifts, loans)

Awards Under the FPA

If a court finds that adequate provision was not made, it has broad discretion to award what it considers proper. This might be a lump sum, a life interest in the family home, periodic payments, or some other arrangement. The court can also order that costs be paid from the estate. In a typical case where the estate is modest and the claims legitimate, awards of 10–30% of the estate are not unusual — but each case turns on its own facts.

Lack of Testamentary Capacity

A will can only be valid if the person who made it (the testator) had “testamentary capacity” at the time they signed it. The legal test for testamentary capacity in New Zealand derives from the English case Banks v Goodfellow (1870) and requires that the testator:

• Understood the nature of making a will and its effects
• Understood the extent of the property being disposed of
• Understood who had natural claims on their estate (family and dependants)
• Was not suffering from a disorder of the mind that caused them to dispose of property in a way they would not otherwise have done

Dementia, serious mental illness, or severe medication effects at the time of signing can all be grounds for a capacity challenge. But note: capacity is assessed at the moment the will was signed, not generally. A person with advancing dementia may still have had capacity on a “lucid interval” when the will was executed. Courts look closely at medical records, the solicitor’s file, and other contemporaneous evidence.

Undue Influence and Fraud

Undue influence occurs when a third party’s pressure on the testator was so overpowering that the resulting will reflects their wishes rather than the testator’s own. This is a distinct concept from simply influencing someone — family members legitimately influence each other all the time, and that is not undue influence.

What the courts look for:

• The testator was in a vulnerable position (physically weak, isolated, cognitively impaired)
• Another person had the opportunity and motivation to exert pressure
• The will, on its face, is inexplicable except by that pressure — departing dramatically from what the testator previously expressed

Direct proof of undue influence is rarely available. Courts look at circumstantial evidence: sudden changes to the will after a new relationship, the testator’s increasing isolation from family, correspondence showing fear or dependence, the involvement of the beneficiary in arranging or attending the will signing.

Fraud in the context of wills typically means the testator was deceived into signing something they did not understand was a will, or was given false information that led them to make different provisions than they otherwise would have.

Formal Validity: Was the Will Properly Made?

Under the Wills Act 2007, a valid will must:

• Be in writing
• Be signed by the testator (or directed to be signed in their presence)
• Have that signature witnessed by two people who are both present at the time of signing
• Be signed by the witnesses in the testator’s presence

A will that fails these requirements is not automatically invalid — but it requires court intervention. Section 14 of the Wills Act 2007 gives the High Court a discretionary “saving” power to validate a document that does not comply with formal requirements, if the court is satisfied it reflects the testator’s testamentary intentions. This curative jurisdiction has been used to validate handwritten notes, emails, and even text messages in some overseas jurisdictions — New Zealand courts have been cautiously willing to apply it to clear cases.

Time Limits: The Most Commonly Missed Rule

This is the rule that catches the most people out. Under the Family Protection Act 1955, an application to the court must generally be made within 12 months of the grant of probate of the will. After 12 months, the court can still grant leave to file a late claim — but only in exceptional circumstances, and the burden to justify the delay is high.

The 12-month period begins from the grant of probate — not from the date of death, not from when you found out about the will, and not from when you became concerned about its contents.

For challenges to the validity of the will itself (capacity, undue influence, formal invalidity), the time limits are governed by the Limitation Act 2010. The general position is a 6-year period from when the cause of action accrued, but this is subject to the specific nature of the claim and when the facts were known. Take legal advice on timing without delay.

The Legal Process: How a Will Challenge Works

1. Consult a succession lawyer immediately. Before anything else — before writing to the executor, before contacting other family members — get legal advice. The strategy matters, and early mistakes (including emotional confrontations that compromise evidence) can be costly.
2. Obtain a copy of the will and grant of probate. Once probate is granted, the will becomes a public document. You can obtain a copy from the High Court registry. The probate document tells you the grant date — and starts your 12-month clock.
3. Serve a notice of claim on the executor. Before filing court proceedings, claimants under the FPA typically give the executor notice of their intention to claim. This can pause distribution of the estate while the matter is resolved.
4. Attempt mediation or negotiation. Most will disputes are resolved without going to trial. Mediation between the claimant, executor, and other beneficiaries is common and often productive. A negotiated outcome is faster, cheaper, and less emotionally damaging than a full hearing.
5. File proceedings if settlement is not reached. If negotiations fail, proceedings are filed in the High Court (for validity challenges) or in the Family Court or High Court (for FPA claims). Pleadings are filed, disclosure of documents is exchanged, and the matter proceeds to hearing.
6. Hearing and judgment. At the hearing, the judge considers affidavit and documentary evidence, hears witnesses, and makes a judgment. FPA cases often turn on the history of the family relationship, the estate’s composition, and the financial circumstances of all interested parties.

What Courts Actually Look At

Courts assessing an FPA claim do not simply ask whether the claimant was treated fairly in the abstract. The leading New Zealand cases — including Williams v Aucutt [2000] 2 NZLR 479 (CA) and Henry v Henry [2007] NZSC 64 — establish a structured approach. Judges consider:

The deceased’s moral duty. Did the testator have a moral responsibility to provide for this person? A child who was entirely estranged for 30 years at their own choice stands in a very different position to one who was a regular presence in the deceased’s life.

The claimant’s circumstances. Financial need strengthens an FPA claim but is not essential for adult children. Courts have awarded provisions to financially comfortable adult children who were unfairly excluded relative to siblings.

The competing claims. Other beneficiaries have their own interests, which the court weighs. A new partner of five years who was substantially supported by the deceased has a stronger competing claim than a distant relative or a charity.

The totality of what the claimant has received. Gifts made during the deceased’s lifetime, property already transferred, or other benefits received from the estate all reduce the moral duty to provide further.

Costs: Who Pays When a Will Is Challenged?

Costs in will litigation are genuinely unpredictable. The general rule is that the unsuccessful party pays the successful party’s legal costs — but will disputes are more nuanced. Courts often order that costs are paid from the estate itself, particularly where the dispute arose from the testator’s own ambiguous or unfair decision-making. In other cases, a claimant who loses entirely may face a significant costs award against them personally.

Legal aid is available in some circumstances for High Court will disputes, subject to means testing. In practice, many succession lawyers offer conditional fee or hybrid fee arrangements for will challenges — worth discussing at the initial consultation.

Frequently Asked Questions

Why Will Disputes Are Different From Other Legal Claims

There is something particular about will disputes that makes them harder than most litigation: the key witness — the person who made the will — is dead. The court must reconstruct the testator’s intentions, mental state, and relationships from documentary evidence, the testimony of people who knew them, and whatever the solicitor recorded at the time of signing.

This is why solicitors who prepare wills for elderly clients with complex family situations keep detailed attendance notes. It is also why the quality of record-keeping by the testator’s lawyer becomes a central piece of evidence in contested estates. And it is why family history — letters, text messages, emails, financial arrangements going back years — becomes unexpectedly relevant in a High Court hearing about a will signed on a Tuesday afternoon in a solicitor’s office.

The practical implication for anyone facing this situation: gather everything. Communications with the deceased. Records of financial help you provided. Any conversations about what they intended. Documents that show the family dynamic. A succession lawyer will tell you what matters — but the evidence itself often lives in boxes and old phones, not in courtrooms.

Sources and Legislation

• Family Protection Act 1955 (s 4, s 12 time limits) — New Zealand Legislation
• Wills Act 2007 (formal requirements, s 14 curative power) — New Zealand Legislation
• Administration Act 1969 (intestacy rules, executor duties) — New Zealand Legislation
• Property (Relationships) Act 1976 (surviving partner’s rights) — New Zealand Legislation
• Family Court — courts.govt.nz