The Basics: Claims about wills and estates

Wills and estates

A person of sound mind can make a Will leaving their estate to whom they wish.

However if their Will means a breach of moral duty, perhaps owed to a dependent spouse or child, the Family Court can intervene to rectify the breach. Similarly if a Will fails to honour a testamentary promise the Court can rectify that.

There are formal requirements for a valid Will such as it being in writing and the testator’s signature witnessed by two persons. However if the formal requirements are not met but the testators’ intention is still clear, the High Court can validate an otherwise invalid Will.

You will need a good and experienced lawyer to advise and conduct the necessary litigation to validate an otherwise invalid Will.

Helpful information about making a Will and Estate Administration is available on the New Zealand Law Society website at www.nzls.org.nz.

Claims against estates

Surviving spouses, partners, children and even grandchildren have potential claims against the property of a deceased spouse, partner, parent or grandparent. The nature and extent of these entitlements varies in different situations.

You may have a claim if there has been a breach of moral duty the deceased owed you. The extent of your claim will depend on the seriousness of the breach, the size of the estate, the terms of any Will, and other deserving beneficiaries of the deceased’s estate.

In some circumstances a person dies without fulfilling a promise made to benefit someone in his or her Will. It is called a testamentary promise, and claims can be made against the estate under the Testamentary Promises Act. An example would be a claim by a caregiver who looked after the deceased for a number of years for little or no reward, where the deceased promised the caregiver would be rewarded in the deceased’s Will.

There are time limits for notifying Executors of estates of your intention to make a claim, and for bringing claims in the Family Court against estates being administered.

Good legal advice is always needed about time limits, entitlements and claims against estates.