Can a Parent Challenge a Child’s Will in New Zealand?

When a child passes away, it can be an emotionally devastating time for the parents. In addition to the grief and heartache, questions may arise about the child’s will and whether the parents have any rights to challenge it. In New Zealand, the law surrounding a parent’s ability to challenge their child’s will is complex and depends on various factors. Let’s explore this sensitive topic in more detail.

The Legal Age for Making a Will in New Zealand

In New Zealand, the legal age for making a valid will is 18 years old, as per the Wills Act 2007. This means that if a person is under 18, they cannot create a legally binding will, unless they are married, in a civil union, or have been married or in a civil union before. If a child under 18 passes away without a valid will, their estate will be distributed according to the rules of intestacy, which prioritize the deceased’s parents and siblings.

Challenging a Child’s Will as a Parent

If a child over the age of 18 has made a valid will, their parents may still have grounds to challenge it under certain circumstances. The Family Protection Act 1955 allows certain family members, including parents, to make a claim against the deceased’s estate if they believe they have not been adequately provided for in the will. Section 3(1) of the Act states:

“If any person (referred to in this Act as the deceased) dies, whether testate or intestate, and in terms of his or her will or as a result of his or her intestacy adequate provision is not available from his or her estate for the proper maintenance and support of the persons by whom or on whose behalf application may be made under this Act, the court may, at its discretion on application so made, order that any provision the court thinks fit be made out of the deceased’s estate for all or any of those persons.”

To succeed in a Family Protection Act claim, the parent must demonstrate that the child had a moral duty to provide for them and that the will fails to do so. The court will consider factors such as the parent’s financial circumstances, their relationship with the deceased child, and any support they provided to the child during their lifetime.

Grounds for Challenging a Child’s Will

Apart from a Family Protection Act claim, parents may also challenge their child’s will on other grounds, such as:

• Lack of testamentary capacity: If the parent believes their child lacked the mental capacity to understand the nature and effect of making a will, they may challenge its validity.
• Undue influence: If the parent suspects that their child was pressured or coerced into making the will by another person, they may argue that it does not reflect the child’s true intentions.
• Fraud or forgery: If the parent has evidence that the will is fraudulent or has been forged, they can contest its validity.

Seeking Legal Advice

Challenging a child’s will is a complex and emotionally charged process. Parents considering contesting their child’s will should seek the guidance of an experienced family lawyer who can assess their case and advise them on the best course of action. Naomi Cramer, a leading family lawyer in New Zealand, has extensive experience in estate disputes and can provide compassionate, expert advice to parents in this difficult situation.

Conclusion

In New Zealand, parents may challenge their child’s will under certain circumstances, primarily through a Family Protection Act claim. However, the success of such a challenge depends on various factors, and the process can be emotionally and legally complex. If you are a parent considering challenging your child’s will, it is crucial to seek the advice of a skilled family lawyer like Naomi Cramer who can guide you through this challenging time and help protect your rights and interests.

No solicitor-client relationship is created by this article. The author and owner shall not be liable for your reliance on the information contained in this article. Readers should obtain their own independent legal advice.