By Katie Kennedy - 28 Jun 2023
Section 11 of the Wills Act 2007
(Wills Act) outlines the requirements for a
document to be considered a valid will. Such document must be in
writing, signed by the will-maker or by another person at the
will-maker's direction, and witnessed by at least two independent
witnesses. It is not uncommon for wills to fail to meet these
requirements if they have been drawn up without the assistance of a
lawyer or have not been properly executed prior to a person's
death. It is not the end of the road however, if a person
dies with an invalid will.
If a document which is intended to be a will does not strictly
comply with the requirements set out in the Wills Act, it may still
be declared to be a valid Will on an application to the High Court
pursuant to section 14 of the Wills Act.
Section 14 is a remedial provision which allows the court to
make an order declaring the document valid if it is satisfied that
the document expresses the deceased persons testamentary
intentions. This section applies to documents that appear to be a
will, but do not comply with the section 11 requirements, and to
documents which came into existence in or out of New Zealand.
An application seeking to validate a document as the deceased's
last will must meet the following four requirements:
- There must be a document;
- That document must appear to be a will;
- The document must not comply with the requirements of section
11; and
- The court must be satisfied that the document expresses the
deceased's testamentary intentions.
The process of validating an invalid will is by application to
the High Court under section 14. The court will consider the
document itself, and the evidence surrounding the creation of the
document. The surrounding evidence will include consideration of
the signing and witnessing of the documents, the deceased's
testamentary intentions and any statements made by the deceased
prior to their death. The Courts have been clear in the approach to
be taken. They focus their assessment on testamentary intention
rather than form. The High Court states in Re Estate of
Wong that "a person who in good faith sets out to express
testamentary intentions, should not have those thwarted by
technicalities".
[1]
If the deceased had already executed a will, the Court will
still give consideration to an application to validate a
subsequently invalid testamentary document. This is particularly
relevant in circumstances where a more recent document intended to
be a will reflects a testator's wish to make changes to their
testamentary intentions as was set out in the prior will, such as
changes to the disposition of property, payment of gifts or
legacies, appointment of executors or appointment of testamentary
guardians.
This means that a document can be declared a valid will even if
the deceased did not get around to finalising it in the prescribed
manner. As long as the Court is satisfied it genuinely reflects the
deceased's testamentary intentions, it may be declared valid.
A wide variety of documents have been declared by the Court as
valid wills, including:
Incomplete Wills, including:
- Draft wills that have been signed but not witnessed;
- Draft wills signed but unwitnessed and marked with
'alterations' or 'clarifications';
- An unsigned draft will which had not been seen by the deceased.
[2]
Documents which were not formatted as a will, including:
- An email to a family member outlining testamentary
instructions;
- A hand amended draft will signed by the will-maker and a single
witness;
- Written notes which had not been signed or witnessed;
- Written instructions for drafting of a will which was never
executed;
- An excel spreadsheet which the deceased had prepared prior to
their death;
[3]
- Brief notes written by a friend of the deceased on the back of
a bank letter and kept in a top drawer.
The best way to avoid a will validity issue arising is to ensure
that you give proper consideration to your estate and asset
planning, in particular, ensuring that a will is drawn up which
complies with the requirements set out in section 11, and is
properly executed in a timely manner. An application to the Court
to validate an invalid will can be costly. It is best to seek legal
advice regarding execution of a will, so you have peace of mind
that your will reflects your testamentary intentions and will meet
the legal requirements for a valid will in New Zealand. Our
Trusts and Estates team are well equipped to assist in drafting and
executing a will which avoids the risk of invalidity.
If you find yourself named as a beneficiary of a document which
does not, strictly speaking, comply with section 11, we again
recommend you talk to our Trusts and Estates team, as it may still
be possible for the document to be deemed a valid will and
subsequently given effect.
[1] Re Estate of Wong [2014] NZHC 2554.
[2] Re Campbell (deceased) [2014] NZHC 1632, [2014] 3
NZLR 706.
[3] Re Meyer [2022] NZHC 2040.