45 Years Too Late: Supreme Court Shuts Door on Out of Time Estate Claim

How long is too long to challenge a will? In Gibson v Makgill [2026] NZSC 43, the New Zealand courts gave a definitive answer — and it took three of them to do it.

The Story

In March 1976, Lewis Wait died of cancer, leaving behind a farm, a family, and a will that would take nearly half a century to be challenged.

The farm was owned equally between Lewis and his wife, Nellie. Under Lewis's will, Nellie received a life interest in his half-share, with the remainder to pass to their son, Robert, on her death on the condition that Robert pay each of his two sisters, Lynette and Gaylene, a sum equal to one-sixth of the estate's value as at the date of Lewis's death. Robert had already abandoned his university studies by then to run the farm, and Lewis's overriding objective was to provide for Nellie, who was still relatively young. The two sisters received comparatively little. Probate was granted in July 1976.

Lewis had also settled the LH Wait Family Trust, with his children and grandchildren among the beneficiaries. In 2021, the trust made a capital distribution of $520,000 to each of Gaylene and Lynette.

Lynette's position was that her father had promised her that Nellie would "level things up" between the three siblings after his death. That promise, she says, proved false. In 2016 (some 40 years after Lewis died) Nellie sold her own half-share in the farm to Robert's family trust for $4.544 million plus GST. Most of the purchase price was forgiven by gift. Lynette says she learned of the transaction in 2021 and only then realised the promise would not be honoured.

The following year, in August 2022, she filed a claim under the Family Protection Act 1955, alleging her father had breached his moral duty to provide for her. To get that claim before the court at all, she first needed permission to file approximately 45 years after the standard 12-month limitation period had expired.

That permission was never granted.

Through the Courts

The High Court refused the extension. The 45-year delay was "inexcusable," and that finding alone was sufficient to dispose of the application.

The Court of Appeal agreed. While both courts accepted there was an arguable case that Lewis may have breached his moral duty, they also found the delay itself was fatal. Lynette had known or ought to have known that she was to receive very little under her father's will. She also knew, on her own case, of the risk that Nellie might alienate her own share of the farm or never follow through on the alleged promise. Despite all of this, she did not act for decades.

The Court of Appeal went further, observing that Lynette's claim appeared to be directed more at her mother's conduct than her father's. As the Court put it, insofar as Lewis and Lynette had both assumed Nellie would level up the distributions, it was an unsound assumption. The courts also weighed the significant prejudice to Robert, who had built his entire adult life and career around the provisions of his father's will, though the Supreme Court later noted this aspect may have been more contestable.

Nellie, for what it is worth, died not long after the High Court hearing. She was 99 years old.

The applicant sought leave to appeal to the Supreme Court. Leave was declined. The Court found Lynette was essentially seeking to challenge factual findings, which raised no question of general or public importance. Nor did the Court see any risk of a substantial miscarriage of justice. The matter was at an end.

The Deeper Lesson: Don't Rely on the Surviving Parent to Do the Right Thing

Gibson v Makgill is, at its heart, a cautionary tale about a common assumption — that the surviving parent will, in time, make things right.

Lynette believed her father had promised that her mother would even things out between the siblings. She waited. And while she waited, Nellie sold her half-share of the farm to Robert's family trust for $4.544 million, most of which was forgiven by gift. By the time Lynette understood what had happened, it was too late to challenge her father's will, and her mother's estate was a separate matter entirely.

This pattern is more common than people realise. When a parent dies leaving less than you expected, it is tempting to hold off — to trust that the surviving parent will look after you, to avoid conflict, to wait and see. But that approach carries real risk, because you have no legal control over what the surviving parent does with their own assets during their lifetime. They can sell, gift, restructure, or transfer and, by the time you discover it, your ability to challenge the first parent's will may have long expired.

That risk is even greater where the surviving parent is a step-parent. If your parent has remarried, their spouse has their own family, their own loyalties, and their own estate to think about. Unless a specific estate planning mechanism has been put in place, there is no guarantee that you will receive from the surviving spouse’s estate. They may favour their own children. They may give away what you assumed would one day come to you. And unlike a biological parent, they may have little personal motivation to honour a promise made by someone else.

If you feel you were not adequately provided for when a parent died, the time to take advice is soon after the death — not years later, when the assets have moved on and the limitation period has closed. 

What This Means in Practice

Three principles emerge clearly from the courts' reasoning:

• Delay is the primary obstacle. An inexcusable delay will, on its own, defeat an application for an extension of time. Courts are not looking for reasons to excuse it.
• Knowledge matters. Where a claimant knew or reasonably should have known of the basis for a claim and still did not act, that will weigh heavily against them. A late-arising trigger event does not reset the clock if the underlying facts were long apparent.
• A strong claim is necessary, but not sufficient. Both lower courts accepted Lewis may have arguably breached his moral duty. It made no difference. The delay was simply too great.

The broader principle running through all three courts is one of finality. Estates are administered, assets are dealt with, and people build their lives on the basis of what a will says. The Family Protection Act 1955 does allow for extensions of time, but that discretion has limits and 45 years is well beyond them.

How to Avoid a Gibson v Makgill Situation: Planning for Blended Families

Cases like this are not inevitable. With careful estate planning, it is possible to provide for a surviving partner while also protecting the interests of children (or children from prior relationships in the case of a blended family). The key is to make binding, structural arrangements at the time of the first death, not to leave things to goodwill and assumption.

There are several tools available, each suited to different circumstances.

Mutual Wills

One option is for partners to enter into mutual wills — a legally binding arrangement under section 30 of the Wills Act 2007 where each agrees to dispose of their estate in a particular way and not to revoke or alter that arrangement without the other's consent. In a blended family, this can give the first to die confidence that their share of the combined assets will ultimately pass to their own children, while still allowing the survivor full flexibility to use those assets during their lifetime.

However, mutual wills come with significant drawbacks. They are inflexible, and if circumstances change after the first death (a new relationship, new family members, a shift in financial position), the survivor cannot easily update their will without risking a claim. Courts are also slow to find that mutual wills exist simply because two people made corresponding wills. For mutual wills to be effective, the arrangement must be clearly and expressly recorded.

Life Interests

A more commonly used structure is a life interest: the surviving partner receives the benefit of the deceased's estate or a specific asset such as the family home for their lifetime, with the capital passing to the deceased's children on the survivor's death. This preserves the capital for the children while ensuring the survivor is properly provided for.

Life interests are particularly valued by the courts as a way of balancing competing interests. As one court has put it, the benefit is that "the capital ultimately is preserved for the child and is not unfairly passed on to strangers in blood." Lewis Wait's will in Gibson v Makgill actually used a life interest structure — the problem was not the structure itself, but the reliance on Nellie (the surviving parent) to then deal fairly with her own separate assets.

Life interests require precise drafting. Poorly drafted provisions frequently cause disputes. Key considerations include what type of interest the survivor needs (income only, or access to capital?), how outgoings and maintenance are handled, what happens if the survivor moves into care, and whether the interest should end on certain events such as remarriage or entry into a new relationship.

Choosing the Right Executor

In blended family estates, the choice of executor matters enormously. Where the will gives one side of the family control over administration, conflicts of interest are almost inevitable, particularly if there are Family Protection Act claims in the mix. An independent executor is often the better choice, providing impartiality and reducing the risk of one set of beneficiaries feeling that the process is being managed against them.

Communication and Letters of Wishes

Finally, good communication within the family, supported by a clear letter of wishes explaining the reasoning behind estate planning decisions can significantly reduce the risk of misunderstanding and claims. People are far less likely to challenge an arrangement they understand and whose rationale has been explained to them.

PK Law advises on wills, estates, and family protection claims. If you have questions about your rights following a bereavement, we would be happy to talk.