I think I’m a beneficiary of a will – am I entitled to see the will?
has been granted, a will becomes public record and anyone can apply to the High Court
to view it.
If probate has not yet been granted - or is not required
- then you can see the will if you are the executor or if the executor has authorised that copies of the will are sent out to all of the beneficiaries.
However the executor is not legally obliged to allow beneficiaries to see the will, so unless you are the executor then you don’t automatically have a right to see the will.
Back to top
My mother has died, and her will is missing! Where can I find it?
If you can't find a family member's will there are a number of places where it, or a backup copy, might be held:
- with the deceased's lawyer or one of the Trustee Corporations that provide services relating to wills and estates or
- with the deceased'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 her.
You can also place 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, 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 did not make a will
- Your mother may have made a will under a different 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. The New Zealand Law Society may be able to advise which law firm took over from the old one.
- 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 - this is called intestacy. You can still make a claim to money or property, provided you have the necessary proof of entitlement.
Back to top
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 just before 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.
Back to top
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'. Once it has been established that there is no will (by following the process described elsewhere on this page) any property or assets will be distributed to surviving family members according to the rules of the Administration Act 1969.
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.
If there are no living relatives the deceased’s estate goes to the State. More information about this is on the NZ Law website.
The person who has the role of distributing the estate according to the above rules is called the “administrator”, and you can read more about this role on our Administering an estate page.
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.
Back to top
How do I find out whether I am a beneficiary of someone’s will?
One of the executor's duties is to identify the people who are beneficiaries of the will, and notify them about this. More about the executor's role is on our Administering an estate page.
Back to top
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, or the will-maker got married after the will was made. If the court rules 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 deceased 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 deceased had promised they were going to provide for you in their will as payment for work or services you provided them.
Back to top
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.
Conversely, a legally adopted child probably wouldn’t have grounds to challenge the will of their birth parent under the Family Protection Act, while a tamaiti whāngai would.
Back to top
What is the process for challenging a will?
If you want to challenge the legal validity of a will, you have to do this through the High Court.
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 one of the 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. Mediation is generally less expensive and quicker than going to court. Your local CAB can help you look for a mediator.
More information is on the Community Law website.
Back to top
Do I have to share an inheritance with my spouse?
You have no legal obligation to share an inheritance with your spouse. You may wish to keep it or a portion of it - separate from your relationship property so that it can’t be claimed in the event of separation.
If you don’t want your inheritance to become part of the relationship property you could:
- 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