A challenge to the validity of a will (including on the basis of a lack of capacity, undue influence, fraud, or that there is a later-in-time will) should be made as soon as possible after the will-maker passes away. Ideally a challenge to the validity of a will should be made prior to probate being granted.
Process where probate not yet granted
The first step to challenge the validity of a will before probate is granted is by lodging a caveat (a written warning) with the High Court at Wellington. Once a caveat is lodged, the person who has lodged the caveat will be notified if someone else tries to apply for probate. At that point, the person who has lodged the caveat has the opportunity to oppose probate of the challenged will being granted.
Process where probate already granted
Even if probate has already been granted, it may not be too late to challenge the validity of the will. A court application can be made to have the grant of probate recalled on the basis that the will is invalid up to 6 years from the date that probate was granted. Practical difficulties can arise, however, if the executor has already taken steps to distribute the estate, so any application should be made as soon as possible.
Effect of successful challenge to the validity of a will
If the challenge to the validity of the will is successful, the will no longer applies. If there is an earlier valid will, then that will applies instead. If there is no earlier valid will, the deceased died “intestate” (meaning without a will) and the intestacy rules apply. Read more about the intestacy rules here.