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Validating an Invalid Will

Written by Caroline Harris, PARTNER on July 28th, 2016.    


Could a handwritten letter be validated as a will?

Many people are aware that in order to create a valid will a number of formal legal requirements must be met: A valid will must be in writing and must be witnessed in a particular way, by two witnesses.

Prior to 2007, documents that were intended to be a will but that failed to meet the formal requirements, were invalid.  Similarly, less formal documents that recorded instructions as to the distribution of a deceased person’s assets were also invalid.  This meant that no matter how clearly the testamentary intentions of a deceased were stated, those intentions could not be followed through if the document did not comply with the legal formalities.  These situations arise frequently, 
for example where:

  • A draft will has been prepared by a solicitor but has not been signed before the will-maker passes away. 

  • The deceased has left behind notes or perhaps a letter in which they provide instructions as to how they wish their property to be distributed.  

  • A formal will has not been witnessed correctly.

  • The will-maker has tried to amend an existing valid will by handwriting changes on the will document but the changes have not been signed or initialled by the will-maker or witnessed properly.

Previously, these relatively common situations may have resulted in an intended beneficiary being deprived of an inheritance; or possibly a beneficiary receiving an inheritance under an outdated will. 

Impact of the Wills Act 2007

The Wills Act 2007 introduced important changes that allow a Court, in certain situations, to validate documents that appear to be a will or that record the testamentary intentions of the deceased.
The changes introduced by the Act recognise that a person who in good faith sets out to express testamentary intentions, should not have those intentions frustrated by technicalities.[1]  The Act’s focus on the deceased’s intentions and the substance of the document
was intended to result in outcomes that more accurately reflect the most recent wishes of the testator. 
Examples of documents that the Courts have validated as 
wills include:

  • Handwritten amendments to a validly executed will.

  • A letter written to the deceased’s solicitor directing certain changes to be made to the distribution of the deceased’s estate.

  • A note left by the deceased for family members that included wishes in relation to the distribution of the estate.

  • A collection of notes found in the deceased’s desk that included funeral directions and names of individuals whom the deceased wanted to leave certain gifts to.

What is required to have a Court validate a document as a will?

In order for a Court to validate a document as a will, it is necessary to make an application to the High Court under Section 14 of the Wills Act 2007.  Applications of this nature are not uncommon and if made properly are often successful.
The High Court has a discretion to declare a document to be a valid will if the Court is satisfied that:

  • The document reflects the will-maker’s testamentary intentions.  This is a key requirement.  In assessing this issue, the Court may take into account the document itself; whether the document has been signed by the deceased or witnessed; any statements made by the deceased as to how they wish their estate to be distributed; present and past relationships between the testator and named beneficiaries; how recently the document was created; and the circumstances in which the document came into existence.  

  • The document must have come into existence in New Zealand and must appear to be a “will” in the sense that the document either attempts to make a disposition of property, or appoint personal representatives after the person’s death, or appoint a testamentary guardian. 

Helpfully, the Courts have developed a relatively straightforward procedure to assist with the speedy and efficient determination of these applications in Court:

  • Evidence to support the application is usually supplied by affidavit, meaning that those who give affidavits are often not required to attend Court.

  • The application must be served on all those who may potentially be adversely affected if the document was to be validated as a will.  Adversely affected parties may include beneficiaries under a previous valid will who may be deleted from a will or have their inheritance reduced if that earlier will is replaced.

  • If the application is not opposed by individuals who have been served with the application, the Court may determine the application and issue a judgment after reading the Court documents.  More complicated or contentious applications may require a Court hearing. 

How we can help
  • Keep on top of your estate planning.  The best way to avoid the need for applications of this type is to update your wills regularly.

  • If, however, a friend or relative has passed away, leaving written instructions in relation to their estate that may not meet the formal legal requirements, get in touch with us as soon as possible.  An application to the Court to have those documents validated may resolve the issue and ensure that the person’s wishes are being met. 

For advice about whether the Court may validate a document as a will, contact Caroline Harris or Sarah Sussman.

For creating a new valid will or making changes to your existing will, contact Kelly Seabourne.

[1] Re Estate of Wong [2014] NZHC 2554
The information contained in this publication is of a general nature and is not intended as legal advice.  It is important that you seek legal advice that is specific to your circumstances.
All rights reserved © Jackson Russell 2016

Caroline Harris Publications2
Caroline Harris,

Kelly Seabourne Publications2
Kelly Seabourne, PARTNER

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