Been Left Out Of A Will?

This is an overview of what you can do if you are left out of a Will.

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In New Zealand, if you have been left out of a Will and believe you are entitled to a share of the deceased’s estate, you may be able to make a claim under one of the following legal avenues:

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1. Family Protection Act 1955 (FPA)

If you were financially dependent on the deceased or had a close relationship, you may be able to claim that the Will did not make "proper maintenance and support" for you. Eligible claimants include:

• Spouses and civil union partners

• De facto partners

• Children (including adult children)

• Grandchildren (in some cases)

• Stepchildren (if they were financially dependent on the deceased)

• Parents (if they were financially dependent on the deceased)

2. Testamentary Promises Act 1949

If the deceased promised to leave you something in their Will in return for services or work you did for them during their lifetime (but failed to do so), you may be able to make a claim.

3. Property (Relationships) Act 1976

If you were the deceased’s spouse, civil union, or de facto partner, you may be entitled to claim a division of relationship property instead of accepting what was left to you in the Will.

4. Contesting the Validity of the Will

You may challenge the Will if you believe it is invalid due to:

• Lack of mental capacity when it was made

• Undue influence or coercion

• Fraud or forgery

• Failure to meet legal requirements

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How to Make a Claim

1. Seek legal advice – Consult a lawyer specializing in estate disputes.

2. File your claim in the High Court or Family Court – Strict time limits apply (usually within 12 months of probate being granted).

3. Provide evidence – This may include financial dependency, promises made by the deceased, or proof of an invalid Will.

4. Mediation or Court Proceedings – Many cases are resolved through negotiation, but if necessary, the court will decide.

 

Always understand that it is vital to act quickly as time limits apply. If the person died without probate, you only have 12 months from the date of death. If probate has been applied for it is 12 months from the date of probate. Failure to file within these times is often fatal to the applicant's case.

This is a complex area of law and it is important to get legal advice as soon as possible. Once you have given your instructions to a lawyer they will generally follow the below steps;

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Obtaining the Will, financial details of the Estate and information concerning the deceased such as whether they had a s21 agreement with their spouse (this is a contracting out or pre-nuptial agreement in New Zealand. Ascertaining how the property was owned. Jointly held property will pass to the surviving spouse while separately (tenants in common) owned property will form part of the Estate. If the value of the Estate is more than $15,000 then probate will be required.

 

After this information is received your lawyer can file directly in both the Family Court and High Court to start the proceeding and have the executor removed so that potentially jointly held property can be clawed back into the Estate.

 

As part of the application an affidavit will be required to start the proceedings. These types of matters are fact specific and will need to outline the basis of the claim. For family protection matters the moral obligation owed to the claimant will be highly relevant.

 

 

Mediation will generally be sought at the first mention date in the Family Court and the Judge will provide a time-table for outstanding affidavits not yet filed. Be aware that these types of cases can be very expensive and can run for years before an outcome is published. Mediation should be sought early particularly if you do not have a strong case.

 

It is very important to have an objective understanding of the strength of your case in comparison to the respondent. Knowing this will give you a greater understanding of how to proceed at the mediation.

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Challenging a Will Under the Family Protection Act (NZ)

Step 1: Confirm Eligibility

• ✅ Check if you are an eligible claimant (e.g., spouse, de facto partner, child, grandchild, stepchild, or dependent parent of the deceased).

• ❌ If not eligible, you cannot challenge the Will under this Act.

Step 2: Assess Grounds for Challenge

• Do you believe the deceased failed to make adequate provision for you in their Will?

  • ✅ Yes → Proceed to Step 3.

  • ❌ No → No valid claim under the Act.

Step 3: Seek Legal Advice

• Consult a lawyer specializing in estate disputes.

• Consider alternative dispute resolution (e.g., mediation).

Step 4: File an Application in the High Court

• Time limit: Must be filed within 12 months of probate being granted.

• Application must include reasons why the provision made in the Will is inadequate.

Step 5: Court Process

• The executor and other beneficiaries may oppose your claim.

• The court considers:

  • The claimant’s financial needs.

  • The size of the estate.

  • The deceased’s moral duty to the claimant.

  • Other competing claims from beneficiaries.

Step 6: Court Decision

• ✅ If successful, the court may redistribute assets to provide for the claimant.

• ❌ If unsuccessful, the Will remains unchanged.