Possible Legal Issues When Creating Your Will

Why wills can be challenged

A will records your wishes, but it does not exist in a vacuum. New Zealand law recognises that some people have legal rights against an estate, and that certain promises and relationships can give rise to claims even when a will says something different. Understanding the common sources of claims helps you make a will that is less likely to be challenged — and that is fairer to the people involved.

Adequate provision for close family

The Family Protection Act 1955 reflects the idea that you have a moral duty to provide for close family members in your will. People who may be able to bring a claim include your spouse or partner, your children, and in some circumstances stepchildren, grandchildren or others who were dependent on you.

If a court decides that your will does not make adequate provision for the proper maintenance and support of an eligible family member, it can adjust the will to provide for them. Leaving someone out — or leaving them less than they might expect — does not automatically prevent a claim. If you intend to exclude or reduce provision for a family member who could claim, individual legal advice is strongly recommended.

Blended families

Blended and step-families can be one of the most difficult situations to provide for in a will. Stepchildren are not always treated the same as biological or adopted children for legal purposes, and the different expectations of a partner, former partner, children and stepchildren can easily overlap or conflict.

It is important to take care when drafting a will in these circumstances — thinking through who you want to provide for, how relationship property is held, and whether family members might have claims. A wills and estates lawyer who understands blended families can help you avoid creating problems that only surface after you die.

Promises about inheritance

The Law Reform (Testamentary Promises) Act 1949 applies where you have promised someone they would receive something from your estate in return for services they provided — such as years of care, work on your property, or help with your business.

If the promise is not kept in the will, the person can bring a claim against the estate for reasonable payment for their services. The claim is limited to what the services were actually worth, rather than the full value of the promise, but it can still disrupt the estate. If someone has provided significant services in the expectation of a gift, deal with that promise deliberately — either honour it in the will, or get advice about the consequences of not doing so.

Partners and relationship property

Under the Property (Relationships) Act 1976, if you have been in a qualifying relationship — generally a de facto relationship of three years or more, or a shorter relationship with a child — your partner is entitled to a half-share of relationship property if you separate or die.

This matters for your will because relationship property is not simply yours to give away. Your partner’s share may pass to them regardless of what your will says, and your will only controls your own share of the relationship property (and your separate property). A will cannot simply override these rights. If you are in a relationship and want your estate to be distributed in a particular way, get legal advice before relying on a will alone.

Other common sources of claims

Beyond the issues above, estates can be disrupted by claims based on:

• concerns about testamentary capacity when the will was made;
• pressure, coercion or undue influence;
• a later will, a missing will, or questions about which document is valid; or
• disagreements between family members about how the estate should have been dealt with.

Our guides on testamentary capacity and undue influence cover those areas in more detail.

How to reduce the risk of a challenge

• Make a will that provides adequately for the people who have a reasonable claim on you.
• Talk through your plans with your family where that will reduce surprise and conflict.
• Get independent legal advice when your family, relationships or assets are complicated.
• Record your reasons when you make decisions that could be questioned.
• Keep your will up to date as relationships and circumstances change.
• Make sure the will is signed and witnessed correctly, with capacity confirmed.

The bottom line

The most common legal issues in will-making come down to a few well-known areas of New Zealand law: adequate provision for family, blended-family complexity, promises about inheritance, and relationship property rights. None of these mean you cannot make a will — they mean the will needs to be made thoughtfully, with the right advice, so it reflects your wishes and stands up when it matters.