General information only — not legal advice. What happens after an invalid will depends on whether an earlier valid will exists and on the family circumstances. This guide explains the general position in New Zealand. If you are dealing with a possibly invalid will, get advice from a qualified New Zealand lawyer.
The short answer
If a will is invalid, the law treats it as though it never existed. The estate is then dealt with under an earlier valid will, if one exists — or under the intestacy rules if there is no other will. The result can be very different from what the will-maker intended, and it often brings delays, costs and family disputes.
If an earlier valid will exists
If the person made a valid will before the invalid one, that earlier will takes effect. This happens when a later will is invalid — for example, because it was not signed and witnessed correctly — and the earlier, properly made will was never validly revoked. The earlier will then governs the estate.
If there is no earlier will
If there is no valid earlier will, the estate is distributed under the intestacy rules in the Administration Act 1969. A spouse or partner and children inherit first, then wider family. People the will-maker wanted to benefit — friends, charities, stepchildren — may receive nothing unless the rules happen to include them.
Partial invalidity
Sometimes only part of a will is ineffective. A common example is a gift to a witness (or their spouse, partner or civil union partner), which is void under section 13 of the Wills Act 2007 — the rest of the will usually stands, but that gift fails. Other problematic provisions can also be severed while the remainder of the will continues.
Who decides a will is invalid
An executor or family may realise a will is defective when probate is applied for, because the court will not grant probate of an invalid will. If there is a dispute, the court decides — usually in a probate or challenge proceeding, based on the evidence about capacity, execution, influence or fraud.
The practical consequences
An invalid will can mean:
- different beneficiaries — people the will-maker intended to provide for may receive nothing;
- delays — the estate cannot be administered until the position is sorted out;
- costs — disputes and court proceedings can consume a significant part of the estate;
- stress — family members are often left to argue at the worst possible time; and
- uncertainty — nobody knows what will happen until the question is resolved.
What to do
If you suspect a will is invalid, get legal advice promptly — do not distribute the estate first. If you are making a will, the message is simpler: prevent the problem by signing and witnessing it correctly, making it with capacity and free will, and keeping it current. Our guide on what makes a will invalid and guide on challenges cover the detail.
The bottom line
An invalid will is treated as if it never existed: an earlier valid will takes over, or the intestacy rules decide. Either way, the result often differs from what the will-maker intended — which is why validity is not a technicality. Get the execution right, and get advice when anything is in doubt.