VALIDATING A WILL
WHAT HAPPENS IF A FAMILY MEMBER HAS DIED LEAVING BEHIND A WILL WHICH IS NOT PROPERLY SIGNED?
The short answer is that the Court can declare a document to be a valid will if the document appears to be a will but does not comply with the formal signing and witnessing requirements of the Wills Act 2007. The Court can do that if it is satisfied that the document expresses the deceased’s testamentary intentions.
This means that the document needs to say how a person wants their property to be distributed when he or she dies. The document doesn’t have to be a document that was intended to be the will-maker’s last will. The focus is on the substance of the document (whether it expresses the will-maker’s intentions about what should happen to his or her property when he or she dies) rather than on its form (whether it was intended to be the will-maker’s will).
WHAT HAPPENS IF A FAMILY MEMBER HAS DIED LEAVING BEHIND SOME OTHER DOCUMENT OR WRITING WHICH DOES NOT MEET THE FORMAL REQUIREMENTS OF A WILL?
So long as there is some form of document containing writing (as opposed to oral statements) the Court can declare that a document is a valid will provided the document “appears to be a will.” A document can meet the requirement of appearing to be a will if it is a document made by a natural person (not necessarily the will-maker her or himself) which disposes of the property of the will-maker when she or he dies.
WHAT KIND OF DOCUMENTS WILL THE COURT DECLARE TO BE A VALID WILL?
The Court has a broad power to treat a wide range of written material as falling within the definition of “document” including:
- a draft will prepared by a solicitor following instructions from a will-maker even if the draft has not been seen by the will-maker;
- written notes taken by a solicitor of a will-maker’s instructions for a will to be prepared for the will-maker;
- electronic documents stored on a computer;
- emails or text messages;
- diary entries;
- suicide notes.
WHAT EVIDENCE IS RELEVANT TO APPLICATIONS TO VALIDATE A WILL?
The Court will be interested in what the document itself says. The Court will also be interested in:
- when and how the document came into existence;
- statements made by the deceased to family members and trusted advisers about how he or she wanted his or her property to be distributed after death;
- present and past relationships between the will-maker and named beneficiaries;
- the will-maker’s mental capacity at the time the document came into existence;
- whether the deceased was unfairly or unduly influenced by anyone in creating the document.
WHAT IS THE PROCEDURE FOR HAVING A DOCUMENT VALIDATED AS A WILL?
The procedure is relatively straightforward involving an application to the Court supported by written sworn evidence explaining the relevant circumstances.
The application must be served on close relatives and other people who may be adversely affected if the document is validated as a will. This would include people or organisations who stood to benefit under any previous wil
Alex McDonald, Estate & Trust Barrister, Auckland