How to Contest a Will in New Zealand: A Guide to Family Protection Claims

Contesting a Will in New Zealand: Your Guide to the Family Protection Act

Key Takeaways

• The Family Protection Act 1955 allows specific family members to claim if a will fails to provide proper maintenance and support.
• Claims must generally be filed within 12 months of the grant of administration to remain within the statutory timeframe.
• Executors may legally distribute estate assets after six months if they have not received formal notice of a claim.
• The court follows a principle of minimum intervention, only changing a will enough to remedy a breach of moral duty.
• Dying without a will triggers strict intestacy rules that often leave surviving partners with inadequate financial support.

Losing a family member is a significant emotional event, and discovering that a will fails to provide for you can add a layer of distress and confusion. In New Zealand, the law recognises that while people should have the freedom to choose how their assets are distributed, they also have a moral duty to provide for those closest to them. When this duty is breached, the Family Protection Act 1955 provides a legal pathway to seek a fairer outcome.

At PK Law, we regularly advise on wills and estate disputes , helping clients understand whether they have a valid claim or assisting executors in managing a challenge. Our focus is on providing clear, empathetic guidance during what is often a highly charged time for families. Whether you have been excluded from a will or left with an amount that feels inadequate, understanding your rights is the first step toward resolution.

What is the Family Protection Act 1955?

The Family Protection Act 1955 is a piece of legislation designed to ensure that a deceased person provides proper maintenance and support for certain family members. It allows the High Court or Family Court to intervene if a will, or the default rules of intestacy, fails to meet this requirement. The core of any claim under this Act is proving that the deceased breached their moral duty to the claimant.

A breach of moral duty occurs when the provision made for a family member is insufficient given their needs and the size of the estate. The court considers several factors when deciding if a breach has occurred, including the claimant’s financial position, their age, their health, and the nature of their relationship with the deceased.

Who is eligible to contest a will?

The right to claim under the Family Protection Act is restricted to specific categories of relatives. This includes a spouse, civil union partner, or de facto partner who was living with the deceased at the time of death. Children of the deceased, including adult children, also have a right to claim. In some cases, grandchildren, stepchildren who were being maintained by the deceased, and parents may also be eligible if they can demonstrate a need for maintenance and support.

Before you can assess the fairness of a will, you must first see the document. In our experience, many people wrongly assume they have an automatic right to a copy of a relative's will immediately upon their passing. We have provided a detailed explanation of who has the right to see or request a copy of a will to help you navigate these early procedural hurdles. Once the terms of the will are clear, we can help you determine if the provision made for you aligns with the deceased's legal obligations.

The critical importance of timing

Time is of the essence when it comes to estate disputes. The law sets a strict deadline for filing a claim under the Family Protection Act. Generally, a claim must be filed within 12 months of the grant of administration. The grant of administration is the formal court order, such as probate, that authorises the executor to deal with the estate assets.

While the 12 month limit is the statutory rule, practical risks emerge much earlier. Executors are entitled to distribute an estate after six months from the date of grant of probate if they have not received a formal notice of a claim. If the assets have already been distributed to other beneficiaries, it becomes significantly more difficult, and sometimes impossible, to recover them. We always recommend seeking legal advice the moment you suspect a will may be unfair to ensure your interests are protected before the estate is wound up.

Why intestacy often leads to disputes

Disputes do not only arise when there is a written will. When someone dies without a valid will, they are said to have died intestate. In these cases, the Administration Act 1969 dictates how the assets are shared. These default rules are rigid and often produce outcomes that the deceased never intended, frequently leading to financial strain for the surviving partner.

For example, if a person dies intestate leaving a partner and children, the partner receives all personal chattels and a statutory legacy of $155,000. However, the partner only receives one third of the remaining estate, while the children take the other two thirds. This structure can create immediate hardship for a surviving spouse who may need those funds for their own housing and daily living costs. We discuss these risks further in our ultimate guide to NZ wills and estates , which highlights why a professionally drafted will is the best way to avoid such rigid outcomes. If you find yourself in this situation, a Family Protection Act claim can be used to ask the court to adjust these statutory shares to better provide for your needs.

How the court decides on a claim

The court does not aim for equal distribution among all family members. Instead, it focuses on whether the deceased met their obligation to provide proper maintenance and support. For adult children, this often means showing a financial need or a specific disadvantage. The focus remains on the claimant's actual circumstances rather than a mere expectation of receiving an equal share to their siblings.

When we review a potential claim, we look at the size of the estate and the competing claims of other beneficiaries. A large estate may allow for more generous provision, whereas a small estate may only allow for the most basic needs to be met. The court also considers any conduct by the claimant that might reduce the deceased's moral duty, such as a long term estrangement without justification. Our role is to help you weigh these factors early so you can make an informed decision about whether to proceed with a claim.

Seeking resolution without the High Court

While the law provides a path to court, we believe that litigation should be the final resort. High Court proceedings are expensive, time consuming, and can permanently damage family relationships. We focus on early assessment and negotiated settlements wherever possible. Mediation is often a highly effective tool in estate disputes, allowing families to reach a compromise in a private, less adversarial setting.

We act for both family members seeking provision and for executors who find themselves under pressure from potential claimants. Executors have a duty to defend the will but also a responsibility to act reasonably. We help executors assess the strength of a claim and determine when a settlement might be in the best interests of the estate as a whole. If a settlement cannot be reached, we provide robust representation in court to ensure the matter is resolved fairly.

Next steps and clear pricing

If you believe you have been unfairly treated in a will, or if you are an executor facing a potential challenge, getting expert advice early is essential.

Taking action to contest a will is a significant step, but you do not have to navigate it alone. We are here to provide the steady, professional support you need to reach a fair resolution.

_Disclaimer: This article provides general information only and does not constitute legal advice. Estate law is complex and depends on individual circumstances. Please consult with a legal professional regarding your specific situation._