Informal Wills

Trusts and Estates

Under the Wills Act the Court has the ability to declare a Will valid even if it doesn’t meet all of the usual requirements. This can make it easier for some cases where a formal Will hasn’t been completed however this should never be relied upon to carry out your wishes in the event of death.

The Wills Act 2007 (“the Act”) came into force in New Zealand on 1 November 2007. It replaced the Wills Act 1837 which was a United Kingdom statute and which had been amended a number of times over the years.

There were a number of significant changes to the previous legislation which were enacted in the Act. One of the most important changes is section 14 of the Act, which empowers the Court to declare a document that is not a valid Will under the requirements of the Act, to be a valid Will, if it is satisfied that the document expresses the deceased’s testamentary intentions.

These changes follow similar legislation in Australia and the UK which has allowed the Courts to validate or correct documents that do not meet the specific requirements for a Will, but do express the deceased’s intentions. Under section 14, the Court can declare a document to be a valid Will, where the document appears to be a Will, but does not comply with section 11 of the Act (see below) and has been executed either in New Zealand or overseas.

The Court may make an order declaring the document to be a valid Will, if it is satisfied that the document expresses the deceased’s testamentary intentions. In making such an order, the Court may consider the nature of the document, evidence regarding the signing and witnessing of the document, evidence of the deceased person’s testamentary intentions and evidence of statements that were made by the deceased person.

Section 14 therefore applies to documents that appear to state the deceased’s testamentary intentions, but which do not comply with section 11 of the Act. Section 11 states that, for a document to be a valid Will, it must be in writing and must be signed and witnessed by at least two witnesses, who must be together at the time that the deceased signed the Will, and they must each sign the document in the presence of the person who made the Will.

Since the Act came into force, there have been a number of cases that have come before the Court. Some examples of these cases illustrate that the court applies a liberal interpretation to section 14:

  • a document called a “Will”, didn’t appoint an executor/trustee, signed by the Will-maker and only one witness (Court held “valid Will”);
  • a document called a “Will”, signed by the will-maker, no witnesses (Court held “valid Will”);
  • a Will was drafted by the Will-maker’s lawyer but not signed by the Will-maker at all as he didn’t think that he needed to sign anything and thought he had done everything necessary (Court held “valid Will”);
  • a document called a “schedule of intentions”, signed by the Will-maker, no witnesses (Court held “valid Will”);
  • a file note written by the Will-maker’s lawyer that recorded the Will-maker’s intentions, nothing was actually signed by the Will-maker, who died before the lawyer drafted the Will (Court held “valid Will”).

In conclusion, although the power given to the Court under section 14 has been welcomed by lawyers to assist in those cases where a formal Will hasn’t been completed (for genuine reasons), everyone should bear in mind there is no substitute for a professionally drafted and properly signed Will to give effect to your wishes upon your death. If you would like further information on Wills, please contact our Estates team who will be happy to assist.

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