Death can bring more than mourning for those left behind. Too often it leads to animosity and arguing around the departed loved one’s Will – especially when its provisions come as a surprise.

Many people assume testamentary freedom beats all else, and that they have the right to do with their assets whatever they wish, with those wishes being honoured after they die. However, this is not always the case.

There are myriad misconceptions around if, why and how Wills can be challenged.

There are two main reasons a Will may be challenged: firstly, its legal validity is disputed; and, secondly, a beneficiary believes they have not been adequately acknowledged.

In this, the first of our two-part series on challenging Wills, we’ll explore objecting to a Will on the grounds it’s invalid, how those proceedings usually develop, and what you can do in life to ensure your possessions go where you want them to.

What can cause a Will to be invalidated?



The grounds on which the validity of a Will can be challenged include:

• The Will was not properly executed and witnessed
• The Will-maker did not have the required mental capacity at the time they signed the Will
• The Will-maker did not know what was in the Will, or the effects of the Will, when they signed it
• That the Will-maker was unduly influenced by another party when they made their Will

If you plan to object on any of the above grounds, your first step should be seeking independent legal advice. Protesting a Will can be expensive and complex, and, potentially, have a life-long impact on important relationships. You need to be making well-informed, measured decisions from the outset. How much will it cost financially? Is there even enough in the estate to warrant a legal fight? And, what is the emotional cost? These types of proceedings can cause lifelong estrangement within families, so it pays to balance the potential benefit with the almost certain detriment before you begin.

If you decide to proceed, the administrator of the estate (normally the lawyer who holds the Will) must be advised you are challenging the Will. A caveat will also need to be filed with the Court before probate is granted. The administration process will be put on hold, and no money will be distributed (apart from necessary bills).

In terms of timelines, it is possible for the Court to declare a Will invalid even after grant of probate (probate is usually obtained within a couple of months of death). Once the estate has been distributed, however, the chances of any relief are slim.

To have a valid case, one or more of the grounds outlined above must be proven. Discuss with your lawyer the type of evidence you’ll need – keeping in mind, this is a difficult task, and rather subjective.

You will need to use – and pay for – your own lawyer to file your application in Court and represent you in proceedings. Sometimes, these cases are settled by the parties before they reach Court. If not, it will be a Judge who determines the validity of the Will in question. They may find the Will legally sound; agree that the Will-Maker had no valid Will and, therefore, died “intestate”; or revert to an earlier Will. Sometimes part of the Will is upheld, and part is amended.

Preventing problems

So, how might you prevent a challenge of this kind – either in regards your own Will, or in helping someone you care about ensure theirs is drafted correctly and in line with their wishes, while balancing the legal realities?

The best way is to make sure you (or your loved one) have an up-to-date, professionally-drafted Will. It’s imperative that anyone whose capacity might be questioned is provided legal support, preferably after a doctor has assessed the Will-maker’s mental state.

Get all Wills properly executed and explained – most Wills executed without legal assistance are done incorrectly, and it can also be harder to prove you had mental capacity at the time of execution, that you understood the contents, and that there was no undue pressure from another party if you are relying on lay-people as witnesses.

Keep an eye out in the next few weeks, when we’ll look at the second path to challenging a Will – cases where people believe they have not been adequately provided for.

Feedback, comments and questions are always welcomed – please feel free to e-mail me on [email protected].

T: 03 443 0900

W: www.aspiringlaw.co.nz

Danielle Ward is a Solicitor at Aspiring Law, and specialises in Elder Law and Life Planning, including Wills, Trusts and Enduring Powers of Attorney.

Please remember, this information is designed as a general guide, and should not replace specific legal advice on a particular issue.