Contesting a Will in New Zealand: The Family Protection Act 1955

In New Zealand, the main way to contest a will is a claim under the Family Protection Act 1955, brought by an eligible family member who says the will-maker did not adequately provide for them. This page covers who can claim, how the courts weigh a claim, and the strict time limit for bringing one.

This is general information about New Zealand law, not legal advice. For your own situation, consult a lawyer or your local Community Law centre.

What a Family Protection Act claim is

The Family Protection Act 1955 is the main statutory route for contesting a will in New Zealand. It does not ask whether a will was properly signed or whether the will-maker had the mental capacity to make it. Instead, it assumes the will is valid and asks whether the will-maker failed in a moral duty to adequately provide for certain family members.

A successful claim can result in the court ordering provision out of the estate for the applicant, which effectively changes how the estate is distributed regardless of what the will itself says.

Who can make a claim

Under the Family Protection Act 1955, an application can be made by:

• the deceased's spouse, civil union partner, or de facto partner
• the deceased's children
• grandchildren who were living at the date of the deceased's death
• stepchildren the deceased was maintaining
• the deceased's parents, if the deceased was providing for them just before death, or if the deceased left no surviving spouse, partner, or children

Only people in these categories can bring a claim. A more distant relative, a friend, or a former partner outside these categories generally has no standing under this Act, whatever they believe they were promised.

The moral duty test

The court's central question is whether the will-maker breached a moral duty to provide adequate maintenance and support for the applicant's proper maintenance and support, judged at the time the will took effect. This is a legal standard, not a simple fairness check, and the outcome depends heavily on the applicant's relationship to the deceased, their needs, the size of the estate, and the claims of everyone else with an interest in it.

A will-maker generally has considerable freedom to decide who benefits from their estate. The Family Protection Act does not guarantee equal shares between children, and it does not guarantee any particular outcome for an applicant. The court looks at the whole picture before deciding whether provision should be made, and if so, how much.

What the court can do

Where the court finds a breach of moral duty, it can order that provision be made for the applicant out of the estate. This can mean redirecting assets that the will gave to someone else, even where the will-maker explicitly said they did not want the applicant to receive anything. A stated intention to exclude someone does not by itself defeat a claim, though it is one factor the court considers.

The time limit

An application under the Family Protection Act generally must be made within 12 months of the grant of probate (where there is a will) or letters of administration (where there is no will or the named executor cannot act). That period extends to 2 years where an administrator is applying on behalf of a minor or a person who lacks the capacity to apply themselves.

The court can extend this deadline in limited circumstances, but that becomes difficult once the estate has already been distributed to beneficiaries, since a late claim can affect assets that have already changed hands. Anyone considering a claim should get advice well before the 12-month mark, not near the end of it.

Contesting a will's validity is a different claim

A Family Protection Act claim is not the same as arguing that a will is invalid. A will can be challenged as invalid on grounds such as the will-maker lacking testamentary capacity when they signed it, being subject to undue influence or coercion, or the will not being properly signed and witnessed as required by the Wills Act 2007, which generally requires the will-maker's signature made or acknowledged in the presence of 2 witnesses present together.

A validity challenge, if successful, can mean the whole will fails, in which case the estate may instead be distributed under an earlier will or, if there is none, under the intestacy rules. A Family Protection Act claim, by contrast, leaves the will standing and asks the court to order extra provision from within it. The two types of claim can sometimes be run together, but they raise different legal questions and are assessed differently.

Related New Zealand wills and estates topics

For the requirements that make a will valid in the first place, see making a will in New Zealand. For what happens when there is no will at all, see dying without a will in New Zealand. For the wider picture, see the wills and estates hub.