By Hayley Boud
What happens if the will is invalid?
In 2007 the Wills Act was reformed to allow the High Court to declare a will valid under section 14 when the document appears to be a will but does not comply with section 11 of the Wills Act. The Court may only do so if it is satisfied the document expresses the deceased’s testamentary intentions. In doing so, the Court may consider the document, evidence of signing and witnessing of the document, evidence on the deceased’s testamentary intentions and evidence of statements made by the deceased.
There is an onus on the applicant seeking to have the will validated to prove the following four requirements are met:
There must be a document;
The document must appear to be a will;
The document does not comply with section 11 of the Wills Act; and
The document expresses the deceased’s testamentary intentions.
There must be a document The term “document” is defined in section 6 of the Wills Act as “any material on which there is writing”.
The term “material” is not defined by the Wills Act or the Interpretation Act 1999. It must therefore be given its ordinary, natural meaning which according to the Oxford English Dictionary is, “the matter of which a thing is made”.
In Winterburn v Wilson [2016] NZHC 1422 at [24] the definition of “material” was defined as being both singular and plural so as to validate the deceased’s handwritten instructions, a solicitor’s file note and a signed will as the deceased’s will.
Under section 29 of the Interpretation Act 1999, the word “writing” is defined as representing, reproducing words, figures, or symbols in a visible and tangible form or medium. Therefore, a document could include any form of medium such as paper, glass, metal, wood, fabric, stone, photograph, video, test message. Here are some examples of where an unconventional document was validated by the court:
An eggshell[1]
A will written on a piece of wall made of plasterboard[2]
Electronically stored wills[3]
An email[4]
Solicitor’s notes taken over the phone[5]
Audio recorded message on a MP3 Player[6]
The document must appear to be a will The document must appear to be a will in regards to the content described in section 8 of the Wills Act by being made by a natural person and does one or more of the following:
Disposes of property;
Appoints testamentary guardians; or
Exercises a power of appointment.
Examples include:
An unsigned and unwitnessed document that was a draft will prepared by a solicitor on the instructions of the deceased[7]
A handwritten note headed “This is my will and testament”[8]
A suicide note[9]
A document that was only witnessed by one witness[10]
A will made before the deceased married was validated because of a Memorandum of Wishes that the deceased had made after being married which referred to that will[11]
Solicitor’s notes with a follow up email[12]
The deceased’s handwritten notes along with the solicitor’s file note and will instruction form together constituted a valid will[13]
Document does not comply with section 11 of the Wills Act 2007 The reason for the will not being valid must be due to it not complying with the requirements of section 11 of the Wills Act. For example:
Not witnessed correctly;
Not signed correctly;
No attestation clause; or
The will is lost.
Document must express the deceased’s testamentary intentions The test according to Lauder v Lauder [2012] NZHC 3155 is whether the document expresses the will-makers testamentary intentions. The test is not what is in the best interests of the will-maker’s dependants. Furthermore, any undue influence, coercion or lack of testamentary capacity would not be considered as the deceased’s testamentary intentions.[14]
A draft will cannot be validated if the will-maker wanted to make further changes to it before finalising it, even if they have shown an intention to change their previous will.[15]
Examples
Will not signed Signing a will authenticates the will-maker’s intentions but the failure to sign will not be fatal. Examples of where the court has validated a non-signed will include:
A solicitor drafted a will and invited the will-maker to make an appointment to sign the will but he did not do so.[16] The will-maker had shown the will to his partner and was happy with it but thought there was nothing more that he needed to do. The Court held it was a valid will.
A will-maker received the draft will from the solicitor but was seriously ill and passed away before signing it.[17]
A solicitor received the will-maker’s instructions over the telephone and drafted the will but the will-maker passed away suddenly before signing it.[18]
The deceased signed his wife’s will instead of his own will. Since her will mirrored his will, the court treated the will as the deceased’s testamentary intentions.[19]
Witnessing defects Examples of where there have been failures in witnessing the will-maker signing the will include:
A will written in Chinese that disposed of the deceased’s property was signed but not witnessed. The Court validated the document because it was likely the will-maker who had only been in New Zealand for ten years was not aware of the witnessing requirements.[20]
A will that was witnessed by only one witness was validated as it appeared to be a will and it expressed the deceased’s testamentary intentions.[21]
A handwritten suicide note that included funeral instructions and was headed, “this is my will and testament” was validated.
Non-compliance with the attestation requirements There have been a few cases in New Zealand where courts have validated documents that did not include a formal attestation clause.[22]
Switched wills There have been a number of cases where two people (usually spouses or close family members) have accidentally executed each other’s similarly worded wills. Courts use their power to validate the deceased’s will even though it has been signed by another person.[23] For example, in Re Estate of Froggatt [2015] NZHC 1840 where Mrs Froggatt’s will was mistakenly signed by her husband, the court validated her will.
Lost wills Where a will has been lost but there is an electronic copy of the executed will, courts will not validate the electronic copy under section 14 of the Wills Act in New Zealand. Instead, courts require the applicant to follow the process for admitting a lost will to be followed.
A lost will that was found a year after letters of administration had been granted was admitted to probate.[24]
An unsigned and unwitnessed copy of the deceased’s will was found and admitted where there was evidence from the deceased’s solicitor that the original of that will had been executed.[25]
The deceased signed his will on the same day as his wife. Their wills were on the same terms. The wife’s will was used as evidence of the deceased’s lost will.[26]
Procedure The Wills Act 2007 does not prescribe for the procedure required for applications under section 14. Justice MacKenzie held that the appropriate procedure will depend on the circumstances and that the choice of procedure should be guided by two principles:[27]
All those who might be affected by making of an order were given adequate notice; and
The procedure should reflect the remedial nature of the power.
Where all parties affected support the application (or at least do not oppose it) the application may be brought on a “without notice” basis. Proceedings may be brought by originating application rather than by statement of claim or interlocutory application. The application may then be decided on the papers. Applications require affidavits detailing whether there are earlier wills, who would be affected if the relief sought was granted, circumstances relating to the non-execution of the will and statements of the deceased or other evidence relating to the deceased’s testamentary intentions.
Where parties may oppose or are unable to give consent, the proceedings should proceed on formal notice. For example, in Re Estate of Froggatt [2015] NZHC 1840 the affected beneficiary was unable to consent because she was suffering from advanced Alzheimer’s. The Court directed that counsel be appointed to represent the daughter and that her children be served.
Costs Under rule 14.1 of the High Court Rules, costs are at the discretion of the court. In determining where costs should lie, the court will consider the following:
If the litigation is the fault of the testator (eg by the state in which he left his testamentary writings, or by his eccentric or irrational habits and mode of life) or of those interested in the residue, the costs may properly be paid out of the estate.
If there are sufficient and reasonable grounds, looking to the knowledge and means of knowledge of the opposing party, to question either the execution of the will or the capacity of the testator, or to put forward a charge of undue influence or fraud, the losing party may properly be relieved from the costs of his successful opponent.
Unless the circumstances of the case are such as to bring it within one of the foregoing exceptions, the general rule that costs should follow the event ought to prevail.
In Harris v Taylor [2016] NZHC 483 costs were ordered to lie where they fell since the applicant seeking validation was the primary beneficiary under her father’s new will and the defendant’s misconduct towards his father led to the creation of the new will.
In Kirner v Falloon [2015] NZHC 2876 the unsuccessful applicant was awarded a small contribution of her legal fees from the estate because it was her right to question the document and the evidentiary difficulties meant she should not have incurred costs for litigation that was almost certain to fail.
For further information feel free to call us on 07 838 0808 or email hayley@ghlaw.co.nz
[1] Hodson v Barnes (1926) 43 TLR 71.
[2] Estate of Slavinskyj (1988) 53 SASR 221.
[3] Blackwell v Hollings [2014] NZHC 667.
[4] Pinker v Pinker [2015] NZHC 660, (2015) 30 FRNZ 174.
[5] Re Estate of Feron [2012] NZHC 44, [2012] 2 NZLR 551.
[6] Wilson v Donnellan HC Wellington CIV-2012-485-2099, 6 May 2013.
[7] Re Estate of Hickford HC Napier CIV-2009-441-369, 13 August 2009.
[8] Re MacNeil (2009) 10 NZCPR 770 (HC).
[9] Re Estate of Wong [2014] NZHC 2554.
[10] Smith v Shaw HC Nelson CIV-2010-442-239, 14 September 2010.
[11] Genet v Genet Trustee Ltd [2013] NZHC 2834.
[12] Re Estate of Feron [2012] NZHC 44.
[13] Winterburn v Wilson [2016] NZHC 1422.
[14] Harris v Taylor [2015] NZHC 3190 at [133].
[15] White v White [2014] NZHC 865.
[16] Re Estate of Hickford HC Napier CIV-2009-441-369, 13 August 2009.
[17] Re Tutaki and Lauder v Lauder.
[18] Re Brundall.
[19] Re Estate of Subramaniam [2014] NZHC 1484.
[20] Re Zhu HC New Plymouth CIV-2010-443-21, 17 May 2010.
[21] Smith v Shaw HC Nelson CIV-2010-442-239, 14 September 2010.
[22] Re Estate of Te Brake HC Hamilton CIV-2009-419-800, 21 August 2009; Re Clayton HC Hamilton CIV-2009-419-963, 24 September 2009; Re Maddox HC Auckland CIV-2009-404-8025, 22 December 2009; Stephenson v Rockell (2010) 28 FRNZ 168.
[23] Re Estate of Subramaniam [2014] NZHC 1484.
[24] Wren v Wren [2006] EWHC 2243 (Ch).
[25] Re Davies HC Tauranga M47/98, 4 August 1999.
[26] Re Hauraki HC Auckland CIV-2005-404-3591, 27 July 2005.
[27] Re Estate of Hickford HC Napier CIV-2009-441-369, 13 August 2009 and Re Zhu HC New Plymouth CIV-2010-443-21, 17 May 2010.