Challenging a New Zealand Will or Estate from Overseas

16 February, 2020 | Carolyn Ranson

Are you a New Zealander living overseas wanting to know if (and if so how) you can make a claim against a Will?

New Zealand law provides a number of ways a Will can be challenged.  We discuss these in our article What are grounds for challenging or contesting a will?  But what do you do if you are living overseas and you don’t know the first place to start?  This is where a lawyer experienced in estate litigation and negotiation can assist.

We can advise you on the law, your chances of success and your options.  We can negotiate on your behalf to seek to achieve a successful outcome without the cost or stress of going to Court.  We will guide you every step of the way with cost effective, honest and strategic advice.  We can do this all by telephone, skype call and by email – we don’t have to be in the same room with you.

Read our case study below to see how it all works:

 

Case Study

 

What was the situation?

Carol* (not her real name*) is a New Zealander who is living in Australia.  She contacted us because she had been left out of her mother’s Will. Carol’s mother died in New Zealand and owned a property and had money in a bank account.

Carol had been estranged from her mother for about ten years and had always had a difficult relationship – the reasons were complicated. But Carol felt that she should still be recognised in the Will. Carol’s mother Betty* had left all of her estate to her two other children, John and Bev, half each.  John supported Carol’s belief that she should receive some inheritance, but Bev did not. Both John and Bev were executors of the Will, but Carol was not. Bev did not want to give Carol any information about the Will, but John showed Carol a copy of the Will.

 

What did we do?

We talked to Carol about the costs that would be involved for us to review her case and advise her of her options.  She decided to instruct us on that basis.

We advised Carol that even though she was estranged from her mother, she still had grounds to contest the will which included, in this case, a claim under the Family Protection Act 1955.  After obtaining the background information and discussing various potential outcomes, we drafted a letter for Carol to review.

The letter set out the legal argument supporting Carol’s claim, the specific facts which supported that argument and it contained an offer to settle the matter without further litigation.  Carol approved the letter and it was sent to the lawyers acting for the executors of Betty’s Estate.

As John and Bev were both executors and beneficiaries, they had to seek independent legal advice in their capacities as beneficiaries of the Estate.

There was further without prejudice (off the record) correspondence with John and Bev’s lawyer and the parties eventually agreed on a settlement.

 

What was the outcome?

Through negotiations we were able to secure Carol a settlement by way of a percentage of her mother’s estate without going to Court. This saved Carol money in legal fees and prevented the ongoing stress of a long drawn out court battle.

While sometimes going to Court is inevitable, we believe most cases can be settled before it reaches that stage.

Because we spent time in our letters/negotiations explaining to Bev and John (through their lawyer) why Carol felt she was entitled to be recognised in her mother’s Will (supported by legal argument and precedent), we were able to achieve a satisfactory outcome.

While Bev had been reluctant to share the estate with Bev to start with, in the end a compromise was reached which formed a platform for them to begin to repair their own relationship.

If you would like advice on any matters relating to estate litigation or any other estate related matter, please contact our estates litigation specialists on 09 836 0939 or email partners@smithpartners.co.nz.