Who can contest a will?

5 April, 2012 | Carolyn Ranson

The death of a family member or someone close to you is an emotional time.  Feelings can be further exacerbated if you discover that your inheritance is not what you expected. New Zealand law lays out who must be provided for by a deceased estate, regardless of what is written in a will.  Many wills are subject to claims because these people have not been properly provided for by the estate.

There are three types of claims that can be made on an estate.

Family Protection Claim

This is a claim that is made under the Family Protection Act 1955.  The claim can be made by a spouse, de facto partner, child or grandchild of the deceased.  Step-children can also be included if they were being financially supported by the deceased.  Any person or persons in that class can claim that the deceased had a moral duty to provide for them adequately which they failed to do.  This can be, for example, by leaving out a child altogether or not providing adequately for a partner.

A Family Protection claim can be made up to one year from the grant of Probate or Letters of Administration.

Testamentary Promises

This is a claim that is made under the Law Reform (Testamentary Promises) Act 1949.  This claim can be made on an estate from any party.  The claim is based on a promise the deceased person made to the claimant that they would provide for them in a will.  It is an essential part of a testamentary promises claim that the claimant relied on that promise and performed services in respect of that promise.  An example of a testamentary promise claim could be if a neighbour had been told if they looked after a person they would be left something.  The neighbour would then have to provide the services such as house cleaning or checking up on the person in anticipation of being remembered in the will.

Services have to amount to more than services for natural love and affection before they can be considered.  A Testamentary Promises claim can be made up to one year from the grant of Probate or Letters of Administration.

Property (Relationship) Act (1976) (PRA)

This is a claim that is made under the Property (Relationships) Act (1976). This claim is made by a spouse or de facto partner of the deceased.  In cases where people have been in a de facto relationship for more than three years there is a presumption that property would be shared equally as though the parties had been married.

A party must elect to make a Property Relationships claim within six months of grant of Probate or Letters of Administration or, if Probate is not required, within six months of the date of death.  The time limit can be extended by the Court if distribution of the estate has not been made.

Once an election has been made, i.e., to make a claim under the Property (Relationships) Act (1976), or to take under the will (meaning to take what was left in the will), it is irrevocable.  If no election is made the claimant is deemed to have elected to take under the will.  In the event that a claim under the Property (Relationships) Act (1976) is made, this must be dealt with before any distribution of the estate.

Time Limits

Although a Family Protection claim or Testamentary Promises claim can be made up to one year after Probate or Letters of Administration is granted, the executor or administrator can distribute the estate after six months from the date of grant if they are unaware of any claim.  Prior to the six months, the executor or administrator will be personally liable for any distribution made.  After six months, a claimant can follow the proceeds to the beneficiary but the executor or administrator is no longer personally liable.

A skilled estate litigator can ascertain if you have a viable claim and help you understand what would be involved in making a claim against the estate.

In accordance with our obligations under the Lawyers and Conveyancers Act 2006, we cannot provide legal advice unless you have become a client of Smith and Partners and have received our Terms & Conditions of Engagement and Info for Clients.

If you would like advice on any matters regarding challenging or contesting an estate, please contact Suzanne Sumner, Personal Assistant to estate litigation expert, Carolyn Ranson to find out how you can become a client of Smith and Partners and to set up an appointment to discuss your estate litigation matter with Carolyn.

Suzanne Sumner
Ph: 09 837 6840
Email: Suzanne.sumner@smithpartners.co.nz
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