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Will Kits: DIY gone wrong?

By Natalie Whitelock - November 2018

Online wills or do it yourself will kits seem to be a popular new trend and could be due to a number of factors.  For example, people often put off making and signing their wills until they are going overseas and they feel a sense of urgency to ‘get their affairs in order’, and sometimes it is the simple fact that online wills or will kits are seen as more cost effective.

However, are online wills or DIY will kits, especially without a lawyer’s oversight, the most effective way to ‘get your affairs in order’?

In the recent case of Mills v Laboyrie [2018] NZHC 1368, the question before the High Court was whether or not a partially completed will from a will kit satisfied section 14 of the Wills Act 2007.

For a will to be declared valid under section 14, it has to satisfy the following requirements:

  • the document has to appear to be a will;
  • the document does not fall within section 11 of the Wills Act 2007 (for example, it is not signed and witnessed by two independent people);
  • the document came into existence in or out of New Zealand; and
  • the document expresses the deceased person’s testamentary intentions.

Background

The deceased was Stephen Mills who died of complications with multiple sclerosis on 14 April 2017.  At the time of his death, Stephen lived in the family home and required daily care.

Stephen was one of eight siblings.  Stephen’s brother Terence was involved with Stephen’s care and seemed to be the only sibling that understood Stephen’s fear of leaving the family home and being placed into a care facility.  Terence was involved in building work and was working on making Stephen’s home more accessible as Stephen’s disease progressed.  Some of Stephen’s other siblings had been exploring arrangements for him to be placed into a full-time care facility.

On 10 April 2017, a few days before his death, Stephen’s carer obtained a will kit at Stephen’s request.  The document was drafted by Stephen’s carer, but dictated by Stephen.  The provisions of the document were read back to Stephen and he verbally indicated to his carer that the document outlined his wishes.  The resulting partially completed document left everything to Terence. 

A Justice of the Peace was organised by Terence to formalise the will on 12 April 2017 by witnessing Stephen sign the will.  However, prior to this occurring, Stephen was hospitalised and subsequently died without formalising the will. 

An earlier draft will, prepared seven or so years prior to Stephen’s death, provided for equal distribution between all but one of the siblings.

High Court decision

The Court determined that section 14 of the Wills Act applied to the will kit document and could be declared a valid will if Jagose J was satisfied that it expressed Stephen’s testamentary intentions.

Jagose J cited Re Campbell (deceased) [2014] NZHC 1632, [2014] 3 NZLR 706 (HC) at [18] where it was observed that:

“... section 14 [is] a remedial provision, and that where there is evidence of the deceased person’s testamentary intentions, 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.”

Jagose J found that as Terence appeared to be the only sibling that understood Stephen’s fears about moving into permanent care, it seemed consistent with Stephen’s desire that he wanted Terence to be the recipient of his estate.

Based on the factual circumstances and evidence, the Court held that the partially completed will kit document did express Stephen’s testamentary intentions and it was therefore declared a valid will.

Conclusion

Although the Court found that the will kit document was a valid will in accordance with the Wills Act 2007 in this case, having a will declared valid by the High Court is not the most cost effective way to deal with your asset planning matters, and can add further stress to grieving family members.

While online wills and will kits may be good initial first steps in getting your affairs in order, there are benefits to be gained by involving a lawyer in your asset planning matters.  A lawyer can advise you of the laws that may impact on the provisions of your will.  For example, there are relationship property and family protection laws that may trump some of the specific wishes in your will.  Asset planning matters you already have in place, such as a trust, also need to be taken into account.  Lawyers can advise you on the possible effects and implications of your wishes.  Lawyers will also use their best endeavours to see that a will is completed in accordance with the terms of the Wills Act so that you can be rest assured your affairs are in order and are less likely to be subject to Court scrutiny. 

Natalie is a Solicitor in our Commercial and Asset Planning Teams and can be contacted on 07 958 7435.