Level 6, 586 Victoria Street, Hamilton, New Zealand

07 838 2079

Publications

Invalidity of Wills

By Melissa Gibson - December 2018

Recent cases have outlined important considerations regarding the requirements necessary to prove a Will to be invalid.  There is some confusion around the grounds upon which a Will can be challenged, leading to unnecessary costs in questioning the validity of a Will.

There are several ways a Will can be challenged.  In brief:

  • If the Will has not been made in accordance with the Wills Act 2007 (including disputes regarding the Will-maker’s capacity);
  • If a family member was not provided for under the Family Protection Act 1955;
  • If a promise was made to provide for someone under the Law Reform (Testamentary Promises) Act 1949; and
  • Where a surviving spouse or partner is not satisfied with what they have been given under the Property (Relationships) Act 1976.

Wills Act 2007

Under this Act, the validity of a Will might be challenged on the following grounds:

  • The Will was not properly signed and witnessed;
  • The Will-maker did not have full mental capacity;
  • The Will-maker did not know what was in the Will when they signed it; and/or
  • The terms of the Will have been affected by fraud or undue influence.

Mumby v Mumby sets out the considerations that the Court will take into account when assessing the validity of a Will.  In this case it was argued that prior to her death Mrs Mumby was not pleased with the contents of her Will, however level of satisfaction is not a relevant consideration in determining validity.  It is important to note that the testator’s happiness with the provisions of the Will are not valid grounds upon which to challenge a Will – only the testator’s understanding of the provisions.  A lack of understanding of the provisions of the Will constitutes valid grounds to challenge the Will as it indicates that the Will-maker did not have full mental capacity – this is not the case with a lack of happiness relating to the provisions.

Family Protection Act 1955 (FPA)

Under the FPA a person is responsible for the proper maintenance of certain family members.  This includes:

  • Spouse/partner;
  • De-facto partner;
  • Children;
  • Grandchildren;
  • Stepchildren maintained wholly or partly; and
  • In some cases, parents.

If proper provisions are not made in the Will for the proper maintenance of those mentioned above, they can make a claim in the Courts asking for provision to be made for them out of the estate.

Courteney v Courteney stresses the importance of recognising the moral duty you have to your children to provide for them following your death.  Where children are deliberately and wrongfully excluded from a Will due to clouded judgment on behalf of the Will-maker, constituting a lack of capacity, a breach of moral duty will be found.  For this reason, it is important to understand to whom you are obligated to provide for in your Will, and if you decide to exclude any such people, to seek legal advice to minimise the risk of a dispute in the future.

Moon v Public Trust shows that a de-facto partnership is not limited to couples who have lived together for three years or more.  Whether or not a relationship is de-facto will depend on the nature of the individual circumstances – for example, a couple who have been together for 27 years is likely to give rise to a moral duty to provide for one another, even when they have never lived together.  It is therefore relevant to consider significant relationships that may give rise to a moral duty even if the relationship does not strictly qualify as a de-facto partnership.

Law Reform (Testamentary Promises) Act 1949

Under the Testamentary Promises Act, where a promise was made by the deceased while they were alive but failed to be recognised in the Will, a person may seek provision for this promise from the estate.  It must be found that:

  • Work or services were provided to the deceased;
  • There was a promise of reward;
  • There is a link between the work/services and the promise; and
  • That no reward was ever given.

McBeth v Morrison (Wendt Estate) showed that where there is no link between the work and the promise of a reward, the application will fail.  As such, where the work/services provided were given with no expectation of reward, there cannot be sufficient nexus between the work/services and the promise.  A testamentary promise will only be upheld where, among the above factors, the work/services were provided with the knowledge that a reward would be received.

Melissa acknowledges the assistance of Kaylee Bird in preparing this article.

Melissa is a Director in our Asset Planning Team, specialing in Wills, and can be contacted on 07 958 7440.