Court outlines rules for contesting a will

A recent Court of Appeal judgment means that it will be somewhat harder for claimants (especially those who are financially well off) to successfully contest a will.

Saturday, September 30th 2000, 6:56PM 3 Comments

A recent Court of Appeal decision provides a response to the question some sceptic New Zealanders have asked previously – Why should I make a Will as it will probably be contested and changed anyway?

It is the Family Protection Act 1955 that currently deals with claims for maintenance and support out of the estates of deceased persons.

The act is designed to enforce the moral obligation of a person to make adequate provision for the maintenance and support after their death to a limited class of relatives. The court when enforcing this act will consider such things as the financial situation of the claimant, the financial situation of the deceased, contributions made by the claimant, family history, and the relative urgency of the situation. Should the High Court consider proper maintenance and support has not been provided it may at its discretion, on application being made, order that further provision be made out of the estate in favour of the claimant(s).

The case Williams v Aucutt was recently heard in the Court of Appeal and the previous High Court judgment awarding the adult claimant 25% of her mother's estate (when under the will she was left only 5%) was overturned.

The court noted that over the last few years some judgments had been inconsistent with society’s view on testamentary freedom.

The court said "It is to be remembered that the court is not authorised to re-write a Will merely because it may be perceived as being unfair to a family member, and it is not for a beneficiary to have to justify the share that has been given. Rather, it is for a claimant to establish that he or she has not received adequate provision for proper maintenance and support."

The court has very wide discretionary powers, and consequently fixed rules cannot be laid down. Each case must be decided on its merits, having regard to the value and nature of the estate, the interests of persons entitled under the will or intestacy who may have natural claims on the deceased's estate, and various other considerations relevant to the particular circumstances.

The precedent laid down by the recent Court of Appeal decision means that in future it will be somewhat harder for claimants (especially those who are financially well off) to successfully contest a will.

While it was noted by the court that they are entitled to some provision, the court commented that "where there is no economic need it may be also met by a legacy of a moderate amount."

TOWER Trust has 120 years of experience in drawing up wills and in administering estates. We understand the legislation and court judgments that affect what can be a tricky area of the law and in comparison to an individual being named as an executor, TOWER Trust can offer impartiality and continuity in the administration of estates.

TOWER Trust has a range of products and services that can assist you in securing your family's future. By ringing on 0800 TOWER TRUST (0800 869 378) or emailing enquiries.ttnz@nz.towerlimited.com. This will put you in contact with one of our experienced Client Account Managers who can help you with your specific requirements.

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Comments from our readers

On 16 August 2010 at 4:53 pm Ora Kohe said:

Is there a time limit after granting probate on a will, for me to apply to contest such a will?

On 31 May 2011 at 9:19 am Maddie said:

Who is liable for lawyer and court fees if a will is contested, do who costs involved from all parties come out of the estate in question ?

On 10 March 2012 at 1:28 pm Avis said:

Fathers Will - nearly 5 years ago. All mention in will has received inheritance.
Son has family home, now wants to sell.
Step brother wants half of profits. Title deed in son name. Can he delay sale of the house?