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Last Chance to Change My Will

Is a will valid when instructions have been given, the will has been prepared, reviewed and approved, but not signed? Although an unsigned document can be a will, recently the Court of Appeal decided an unsigned will was not valid because the circumstances suggested the will-maker did not have capacity and was planning to take another step before signing the will.

This article reviews the Court of Appeal decision Marshall v Singleton [2020] NZCA 450, a case about James (86), who was hospitalised and diagnosed with terminal cancer in December 2017, and his four children.

Due to James’ illness his four children, Peter, Christine, Ann, and Susan, organise a roster to care for him.  Ann and Susan withdraw from the roster due to a falling out in their relationship with the other siblings.  James is upset and in his dying days only Peter and Christine are there to care for him.  James reviews his 2015 will which left his estate in equal shares to his four children and asks Peter to prepare a new will. On 30 December 2017, James explains to Peter how he wants to divide assets – one-third of his home equally to Ann and Susan, two-thirds of his home equally to Peter and Christine, and his remaining assets equally to Peter and Christine.  Due to James’ illness, Peter types up a will for him which was read by James on 3 January 2018.  Allegedly James audibly confirmed that the will outlines his intentions, but he does not sign the will.  James says he wants to write a letter explaining the new will to Ann and Susan.  James passes away on 11 January 2018 before signing the will or writing the letter.

Peter applies to the High Court for Letters of Administration annexing the unsigned will.  Ann and Susan oppose the application on the grounds that James, lacking testamentary capacity and being extremely ill, could not have properly expressed his intentions or signed a will.  Dr Jane Casey, consultant psychiatrist specialising in old age psychiatry, gives expert evidence saying that on the balance of probabilities James did not have capacity, even though James’ treating doctor said that he did.  The High Court finds in favour of Ann and Susan, but Peter appealed to the Court of Appeal in 2020.

Test of Capacity

The Court of Appeal upheld the High Court’s decision for two reasons.  Firstly, Dr Casey said that James was very unwell, on strong medication and had some incidents of confusion recorded in his file, so he most likely did not have the required mental capacity.  Secondly, James wanted to explain the new will in a letter to Ann and Susan before signing it, which he never did.

There is a well-established test for testamentary capacity dating back to an 1870 English case (confirmed in a New Zealand Court of Appeal case, Woodward v Smith [2009] NZCA 449) setting out what the Court looks at when deciding if an unsigned will is valid.

Sickness can be challenging, however, this does not mean that the person necessarily lacks capacity to prepare or sign a will.  The Court will assess whether the will-maker:

  • Has intellectual and moral faculties;
  • Understands the nature and effect of the will, and the extent of their property;
  • Comprehends and appreciates the potential claims to their assets;
  • Has the strength to comprehend making a will;
  • Understands the contents of the will;
  • Is free of any mental disorder influencing their affections, moral compass or natural faculties, with no delusion or insanity.

Other principles the Court considers are:

  • Evidence of an “unsound mind” by lack of organisation, physical weakness or the effect of old age;
  • The will-maker must have enough intelligence to understand and appreciate the will-making considerations. Full mental strength is not required;
  • Extreme physical weakness is not a bar to making a final will, even though it could prevent other business (e.g. attending a board meeting);
  • Whether they have put thought into making the will. Someone who has thought about their will for a long time may find it easier to make one in physically bad health than someone who is new to it;
  • A strong memory is not required;
  • Less than peak mental capacity is acceptable, provided a rational, fair and just will can be made.

If you would like to discuss wills, will validity or testamentary capacity further, please do not hesitate to get in contact with one of our solicitors.

Ewen is a Senior Solicitor in our Dispute Resolution Team and can be contacted on 07 958 7466, and Hayley is a Senior Solicitor in our Asset Planning Team and can be contacted on 07 958 7472.


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