Can a non-will still become a will? Validating invalidity

28 Jun 2023

Section 11 of the Wills Act 2007 (Wills Act) outlines the requirements for a document to be considered a valid will. Such document must be in writing, signed by the will-maker or by another person at the will-maker's direction, and witnessed by at least two independent witnesses. It is not uncommon for wills to fail to meet these requirements if they have been drawn up without the assistance of a lawyer or have not been properly executed prior to a person's death. It is not the end of the road however, if a person dies with an invalid will.

If a document which is intended to be a will does not strictly comply with the requirements set out in the Wills Act, it may still be declared to be a valid Will on an application to the High Court pursuant to section 14 of the Wills Act.

Section 14 is a remedial provision which allows the court to make an order declaring the document valid if it is satisfied that the document expresses the deceased persons testamentary intentions. This section applies to documents that appear to be a will, but do not comply with the section 11 requirements, and to documents which came into existence in or out of New Zealand.

An application seeking to validate a document as the deceased's last will must meet the following four requirements:

1. There must be a document;
2. That document must appear to be a will;
3. The document must not comply with the requirements of section 11; and
4. The court must be satisfied that the document expresses the deceased's testamentary intentions.

The process of validating an invalid will is by application to the High Court under section 14. The court will consider the document itself, and the evidence surrounding the creation of the document. The surrounding evidence will include consideration of the signing and witnessing of the documents, the deceased's testamentary intentions and any statements made by the deceased prior to their death. The Courts have been clear in the approach to be taken. They focus their assessment on testamentary intention rather than form. The High Court states in Re Estate of Wong that "a person who in good faith sets out to express testamentary intentions, should not have those thwarted by technicalities". [1]

If the deceased had already executed a will, the Court will still give consideration to an application to validate a subsequently invalid testamentary document. This is particularly relevant in circumstances where a more recent document intended to be a will reflects a testator's wish to make changes to their testamentary intentions as was set out in the prior will, such as changes to the disposition of property, payment of gifts or legacies, appointment of executors or appointment of testamentary guardians.

This means that a document can be declared a valid will even if the deceased did not get around to finalising it in the prescribed manner. As long as the Court is satisfied it genuinely reflects the deceased's testamentary intentions, it may be declared valid.

A wide variety of documents have been declared by the Court as valid wills, including:

Incomplete Wills, including:

1. Draft wills that have been signed but not witnessed;
2. Draft wills signed but unwitnessed and marked with 'alterations' or 'clarifications';
3. An unsigned draft will which had not been seen by the deceased. [2]

Documents which were not formatted as a will, including:

1. An email to a family member outlining testamentary instructions;
2. A hand amended draft will signed by the will-maker and a single witness;
3. Written notes which had not been signed or witnessed;
4. Written instructions for drafting of a will which was never executed;
5. An excel spreadsheet which the deceased had prepared prior to their death; [3]
6. Brief notes written by a friend of the deceased on the back of a bank letter and kept in a top drawer.

The best way to avoid a will validity issue arising is to ensure that you give proper consideration to your estate and asset planning, in particular, ensuring that a will is drawn up which complies with the requirements set out in section 11, and is properly executed in a timely manner. An application to the Court to validate an invalid will can be costly. It is best to seek legal advice regarding execution of a will, so you have peace of mind that your will reflects your testamentary intentions and will meet the legal requirements for a valid will in New Zealand.  Our Trusts and Estates team are well equipped to assist in drafting and executing a will which avoids the risk of invalidity.

If you find yourself named as a beneficiary of a document which does not, strictly speaking, comply with section 11, we again recommend you talk to our Trusts and Estates team, as it may still be possible for the document to be deemed a valid will and subsequently given effect.

[1] Re Estate of Wong [2014] NZHC 2554.

[2] Re Campbell (deceased) [2014] NZHC 1632, [2014] 3 NZLR 706.

[3] Re Meyer [2022] NZHC 2040.