My mother has died, and her will is missing! Where can I find it?
If you can't find the will there are a number of places where it, or a backup copy, might be held:
- with your mother's lawyer or one of the Trustee Corporations that provide services relating to wills and estates or
- with your mother's bank.
If you don’t know who your mother’s lawyer was and she owned property, you can check with the Land Titles Service, as titles to the property may have the name of the lawyer who acted for your mother.
It might be worth placing an advertisement in the official publication of the NZ Law Society, LawTalk.
Also, if you didn’t place a death notice in the paper at the time of your mother’s death you might consider doing this after all, as many law firms check the death notices for names of clients for whom they hold wills.
If you are still unable to find the will, consider also the following possibilities:
- Your mother may have made a will under a different name. For example, she might have made a will under her maiden name or a previous married name.
- Your mother may have made a will in a different city or area.
- The law firm acting for the deceased may have closed down, in which case the will would have been deposited with another firm.
- Your mother may have destroyed all copies of the will, intending to revoke (cancel) the will.
If no copy of the will can be found, your mother's estate will be treated as if no will had been written. You can still make a claim to money or property, provided you have the necessary proof of entitlement.
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How can I find the will of a family member who died a number of years ago?
If you’re looking for a will which has been granted probate, then you (or anyone else) can apply for a copy from the Ministry of Justice for a fee of around $30.
You’ll need to write to the Registrar at the High Court which granted the probate. If probate was granted on or after 4 June 2013 it will be the High Court at Wellington; otherwise it will be the High Court closest to where the deceased was residing at the time of their death.
Your letter should include the full name of the deceased, the date of their death or the date on which probate was granted, and where they lived when they died.
The High Court holds probate records for up to 25 years; for older historical wills you may need to go to Archives New Zealand.
Otherwise you can try the suggestions in the previous question.
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My father didn’t make a will when he died. What happens to his estate?
When someone dies without leaving a will, this is called 'intestacy'. In these situations, the Administration Act 1969 applies. Any property or assets will be distributed to surviving family members according to the rules of the Act.
The basic order of priority in terms of who will inherit the deceased's estate is as follows:
- spouse, civil union partner, or de facto partner,
- brothers and sisters,
- uncles and aunts.
The Court will appoint someone, normally a surviving relative, to distribute the estate (this is referred to as the Court having granted ‘letters of administration’) according to these rules. You or any surviving family member can apply to the High Court to be granted the letters of administration.
People have the right to challenge the distribution of an intestate estate just like they have the right to challenge the distribution of an estate under a will. Read on for more information about challenging a will.
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In what circumstances can a will be challenged?
A will can be challenged:
- on the grounds that it is invalid - for example that it was not correctly witnessed, or the deceased was not of sufficient mental capacity at the time they made the will. If the court holds that the will is legally invalid, either an earlier will can be reinstated, or the estate will be distributed according to the rules of intestacy.
- under the Family Protection Act 1955 - a family member can make a case that the will-maker had a moral duty to provide for them or another family member.
- under the Property (Relationships) Act 1976 - the spouse or de facto partner can make a claim for half of the relationship property.
- under the Law Reform (Testamentary Promises) Act 1949 - you can challenge the will if the will-maker had promised they were going to provide for you in their will as payment for work or services you provided them.
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Can I challenge the will if I'm an adoptive child of the deceased?
If you were legally adopted by the deceased, then you are entitled to make a claim under the Family Protection Act.
However, if you are a tamaiti whāngai - adopted according to Maori customary values and practices - then you cannot make a claim as a child of the deceased under the Family Protection Act.
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How do I go about challenging a will - what is the process?
If you want to challenge the legal validity of a will, the challenge will need to go through either the High Court or the Family Court, depending on the grounds for your challenge.
If you are challenging the will on the grounds that it is invalid, you will need to file a warning (called a caveat) with the High Court and this needs to happen before probate is granted to the executor(s) of the deceased person's estate (probate is where the will is legally recognised by the High Court and it lets the executors deal with the assets of the deceased person's estate).
Once you have filed your caveat the executors have to let you know when they seek probate and they must give you copies of their documents. At this point you become a 'respondent' to their application for probate and you will need to file your documentation with the Court making your case about the legal invalidity of the will.
If you are challenging the will on other grounds (e.g. because you believe you haven’t been sufficiently provided for in the will) then you can make a claim in the Family Court or High Court. You need to do this within 12 months of probate being granted, but it is a good idea to do it as soon as possible. This is because it’s possible for the administrator to distribute the estate within six months of probate being granted.
Because making a challenge is quite complex and also involves going to trial, it is advisable to seek the assistance of an experienced lawyer to help you through this process.
As an alternative to challenging the will in court, you might consider seeking mediation with the other beneficiaries of the will. Your local CAB can help you look for a mediator.
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Do I have to share an inheritance with my spouse?
There is no legal obligation to share an inheritance with your spouse. You may wish to keep an inheritance separate from your relationship property so that it can’t be claimed in the event of separation.
Some steps you could take are:
- Avoid using it for relationship purposes (e.g. to pay off the mortgage on the house you both live in) - this keeps it as separate property
- Set up a contract defining the inheritance as separate property
- Draw up a relationship property agreement, or update your existing one, to ensure that your inheritance is yours alone
- Set up a family trust and gift the inheritance to the trust