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Before a deceased's last will can have the legal effect of distributing property to his or her heirs accordingly to its terms, it must be admitted to probate, that is accepted by the High Court as being valid.
To be valid a will must comply with the formalities for making a will as stated in the Wills Act 2007 which are the same as before the Act came into force. Section 11 sets out those requirements:
(1) A will must be in writing.
(2) A will must be signed and witnessed as described in subsections (3)
and (4).
(3) The will-maker must -
(a) sign the document; or
(b) direct another person to sign the document on his or her behalf
in his or her presence.
(4) At least 2 witnesses must -
(a) be together in the will-maker's presence when the will-maker -
(i) complies with subsection (3); or
(ii) acknowledges that -
(A) her or she signed the document earlier and that
the signature on the document is his or her own; or
(B) another person directed by him or her signed the
document earlier on his or her behalf in his or her
presence; and
(b) each sign the document in the will-maker's presence.
(5) As evidence of compliance with subsection (4), at least 2 witnesses
may each state on the document, in the will-maker's presence,
the following:
(a) that he or she was present with the other witnesses when the
will-maker -
(i) signed the document; or
(ii) acknowledged that he or she signed the document earlier
and that the signature on the document is his or her own;
or
(iii) directed another person whose signature appears on the
documents to sign the document on his or her behalf in
his or her presence; or
(iv) acknowledged that another person directed by him or her
signed the document earlier on his or her behalf in his or
her presence; and
(b) that he or she signed the document in the will-maker's
presence.
(6) No particular form of words is required for the purposes of subsection
(5).
A "document" is defined in the Act as meaning "any material on which there is writing". There is no definition of "material". Writing is defined in section 29 of the Interpretation Act 1999 as "representing or reproducing words, figures, or symbols in a visible and tangible form and medium (for example, in print).
So you find yourself in the difficult and frustrating situation that your recently passed nearest and dearest did leave a testamentary document but unfortunately it is not valid as a will according to the requirements of section 11 of the Act. Under the old law before 1 November 2007 there was no way to cure a will which did not comply with the strict requirements as to form no matter how strong the wishes of the failed will-maker were expressed in it. Fortunately on 1 November 2007 when the new Wills Act 2007 came into force one of the significant changes it made was to give a High Court Judge power to validate a will which does not comply with the formalities of section 11 if the Judge is satisfied that the document expresses the deceased's testamentary intentions. This power is contained in section 14 which provides:
14 High Court may declare will valid
(1) This section applies to a document that -
(a) appears to be a will; and
(b) does not comply with section 11; and
(c) came into existence in or out of New Zealand.
(2) The High Court may make an order declaring the document valid, if it is
satisfied that the document expresses the deceased person's
testamentary intentions.
(3) The Court may consider -
(a) the document; and
(b) evidence on the signing and witnessing of the document; and
(c) evidence on the deceased person's testamentary intentions; and
(d) evidence of statements made by the deceased person.
For section 14 to be invoked the subject document must meet the three requirements in section 14(1). The first is that it appears to be a will. The definition of a will is found in section 8 of the Act. A will is defined as a document that -
(a) is made by a natural person; and
(b) does any or all of the following:
(i) disposes of property to which the person is entitled when he or she
dies; or
(ii) disposes of property to which the person's personal representative
becomes entitled as personal representative after the person's
death; or
(iii) appoints a testamentary guardian.
The second requirement is that the document does not comply with section 11 above (which prescribes the requirements for a valid will) and the third requirement is that the document came into existence in or out of New Zealand. In other words there is no territorial limitation on the application of section 14.
The absence of a signature on the document does not prevent the document meeting the first requirement of section 14 (appears to be a will). The issue is whether the Court is satisfied that the document genuinely expresses the deceased's testamentary intentions. The Court will look at all the circumstances including those set out in section 14(3) which are not exhaustive. The Judge can take into account any evidence which can assist to determine whether the document expresses the deceased's testamentary intentions. For example the circumstances in which the document came to be prepared will be considered, the reasons why the document was not properly signed and witnessed or not signed or witnessed at all, and any other relevant consideration.1
The Judge will take a robust approach when applying section 14 to give full effect to its purpose which is to validate documents that plainly express the testamentary wishes of a deceased person. The section is concerned with substance not form; it is curative of any technical non-compliance provided clear testamentary intentions are present in the document. Even in the most difficult fact situations clear testamentary intentions of a deceased in a document can outweigh any defects in form.2 The standard of proof is on the ordinary civil standard of proof of the balance of probabilities but inherent in that is the need for cogent evidence that the document reflects the deceased's testamentary intentions.3
The examples of the types of documents that have been validated by the High Court include:
Even a document which a deceased may not have seen or read such as in the case of an unsigned draft of a will prepared in a lawyer's office on the deceased's direct or indirect instructions can be validated.4 The validated will can be made up of more than one piece of paper for example notes and email taken together which provide the skeleton of a will if representing the testamentary intentions of the deceased can be admitted to probate under section 14. However the weaker the documentation, the stronger the evidence will need to be that it represents the intentions of the deceased.5
The Court will look to any reason why the person failed to sign a draft will prior to death. The will-maker may have simply overlooked or forgotten to sign the document or thought they did not have to do anything further or simply did not get around to signing their will prior to their death. The will-maker may have been too busy or distracted or had become ill, tired or lacking in energy and simply ran out of time.
A significant delay between preparation of a draft will (unsigned) and death is not necessary fatal to an application under section 14. Applications have been granted where a draft will remained unsigned for five years and also three years.6 If there is nothing to suggest that the deceased had changed his or her mind between the non-compliant will made under his or her hand or direction and their death the delay will not be fatal. In one case a time lapse of nearly nine years between creation of the draft will in 2004 and the person's death in 2013 was not fatal. The deceased had either forgotten that he needed to execute the will or thought he did not need to do anything more. The important point is that the deceased had not changed his mind.7
The Court treats as significant the existence of a draft unsigned will because it shows the deceased did not want intestacy law to dictate how his or her property was to be dealt with following death and the majority of those situations are granted: "it is better that those intentions be given effect, in preference to the disposition of property which would take effect under any previous will or on an intestacy".8
However if the evidence is that the person had on receipt of the draft will from his or her lawyer told the lawyer that he or she was still thinking about its terms and indicated intention to make further changes and then died without doing so the document will not be validated as an expression of the deceased's testamentary intentions and any earlier will remains effective.9
A case which demonstrates how liberal the Court can be on the form of the non-compliant will is the one where the Court declared that a handwritten suicide note and a recorded message on an MP3 player to be the deceased's will.10 Certainly a document on a deceased's computer can be validated as a will.11 In both the deceased's testamentary intent was clear.
On the subject of the procedure for making an application for validation order a practical approach is taken. Who are involved or potentially involved in the estate and whether or not they consent or oppose the making of the application will greatly influence the procedure. All persons who might be affected in a sufficiently material way by the making of the order must be given notice of the proceeding and opportunity to be heard. For those in such category who give written consent an order could be made very quickly after the papers are filed. On the other hand if for any reason such consents are not forthcoming the application must continue on notice and is dealt with in open Court.
For example if there is opposition to the validation attempt the matter will go to a contested hearing. There might be other validity issues raised such as testamentary incapacity. There may be parties interested in the matter that are minors or incapacitated and they will need special consideration as to their representation in the matter. Who will pay the costs of the exercise is a matter decided by the Judge at the end of the case. If the application is completely without merit or someone has taken an unreasonable position they could be deprived of costs or made to personally pay costs. In standard civil matters costs normally follow the event, in other words the loser pays the winner. But as this is a probate proceeding all parties' costs could be paid out of the estate. Such is appropriate if the proceeding can be said to have originated from the fault of the deceased or there were sufficient grounds to have the validity issue tested in Court because of questions about capacity of the will-maker, charges of undue influence or fraud.
If you have any concerns or questions concerning the state in which someone has left his or her testamentary writings please feel free to contact at our Auckland Office:
Peter Fuscic on (09) 306 6746 (pfuscic@mcveaghfleming.co.nz)
See our Expertise pages
Wills and Enduring Powers of Attorney
This article is published for general information purposes only. Legal content in this article is necessarily of a general nature and should not be relied upon as legal advice. If you require specific legal advice in respect of any legal issue, you should always engage a lawyer to provide that advice.
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1 See Re Estate of Campbell [2014] NZHC 1632, [2014] 3 NZLR 706, at 15.
2 Re Estate of Feron [2012] NZHC 44, [2012] 2 NZLR 551.
3 Re Estate of Campbell, above n 1, at 22.
4 Ibid.
5 Re Estate of Feron, above n 2, at 19.
6 Amundson v Raos [2015] NZHC 242, at 22-27.
7 Tamarapa v Byerley [2014] NZHC 1082.
8 Amundson v Raos, above n 6, at 29 quoting McKenzie J in Re Estate of Campbell, above n 1, at 18.
9 White v White [2014] NZHC 865.
10 Wilson v Donnellan [2014] NZHC 1609.
11 Blackwell v Hollings [2014] NZHC 667.
