Where there is a will - is there always a way?

Introduction

In 2007, the new Wills Act (the Act) came into force.  The primary aim of the new Act was to give better effect to a will-maker’s intentions by simplifying the law, expressing it in plain language and modernising aspects of the law.   

As before, the Act only partially regulates the law of wills.  Much of the law governing wills is left to the Courts.  Since the Act came into force, there have been many High Court declarations that particular documents are valid wills, which documents previously would not have met the required standard of a final will and testament of a deceased.  These include:

• Unsigned draft wills;
• A collection of documents that, when read together disposed of the will-maker’s estate;
• An unsigned will prepared on a will kit form where the will-maker had discussed her wishes with her surviving children at different times; and
• A letter named as a will, left with a daughter and a brother to be opened on the “will-maker’s” death.

Set out below are summaries of recent cases in which certain documents have been held to be valid wills.  Some of the restrictions on one’s ability to dispose of property by will are also noted, which show that, even where the Court finds that there is a valid will, there is not always a way.

In the Estate of Lawrence

The 2014 case of In the Estate of Lawrence dealt specifically with an application for validation of an unsigned draft will prepared for the deceased.

The deceased was diagnosed with a terminal lung disease in late 2009.  By mid-February 2013 she was very unwell.  On 1 July 2013, Ms C, a Solicitor, received instructions from the deceased about finalising the terms of her will.  A will was prepared in accordance with those instructions and taken to the deceased in hospital.  In the presence of the deceased’s daughter, the deceased confirmed that she was happy with the contents of the draft will.  Unfortunately, the deceased’s condition rapidly declined and she died before executing the will.  The deceased’s partner and daughter applied to the High Court for validation of the unsigned will.

The Court was satisfied that there was no previously executed will for the deceased and that the deceased’s wishes as set out in the draft will should be given effect to.  The Court made a declaration under section 14 of the Act that the undated and unsigned document was the valid will of the deceased.

In the Estate of Su-Yun Chiang

Another 2014 case, In the Estate of Su-Yun Chiang,dealt with “correction” under section 31 of the Act.  This provision allows the Court to make an order correcting a will if the Court is satisfied that the will contains a clerical error or does not give effect to the will-maker's intentions.

In this case the will-maker was a Buddhist nun with a modest estate and limited family.  She made a will herself using a pre-printed form, without seeking legal advice.  The will appointed two executors and trustees, directed the payment of debts and expenses from estate funds, and provided that the residuary estate was to be held by the executors and trustees.  The will did not give any directions as to the distribution of the residuary estate (the rest of her estate).   However, at the time the will was signed, the will-maker told witnesses, including the executor, that she wanted the residuary estate to be distributed to a Tibetan monk who was a resident of the United States of America but a periodic visitor to New Zealand.

The issue for the Court to decide was whether the omission of any direction in the will to distribute the residuary estate to the Tibetan monk was a clerical error or an oversight capable of being corrected by the Court.  The Court was satisfied by the evidence that the omission of a direction regarding distribution was an oversight and made an order under section 31(2) of the Act correcting the will so that the will-maker’s expressed intentions could be given effect to.

Restrictions on testamentary freedom

It is important to note that, although the primary aim of the Act is to give effect to the ascertainable intentions of will-makers, there are still substantial restrictions on a person’s ability to dispose of his or her property by will in whatever manner he/she chooses.  The Family Protection Act 1955, the Property (Relationships) Act 1976 and the Law Reform (Testamentary Promises) Act 1949 (the Acts) have proved to be successful “tools” used to override the testamentary wishes of will-makers.   

Under the Family Protection Act 1955, a spouse, partner, child, grandchild, and in some cases stepchild and step-parent, are entitled to make a claim against an estate where they have not been provided for in a will.  The Testamentary Promises Act 1949 provides for persons who have provided services to a will-maker in the expectation that payment would be provided for in the will.  The Property Relationships Act 1976 allows the revocation of gifts in a will to a spouse or partner who elects to apply for the division of relationship property under the Property Relationships Act 1976 on the will-makers’ death.

These Acts are arguably at odds with the primary aim of the Wills Act 2007 to give effect to the intentions of will-makers.  Therefore, as far as a will-maker’s intentions go, where there is a will there is not always a way.

Conclusion

Although the approach being taken by the Courts in applying the Wills Act is to ensure as far as is possible that a deceased’s wishes are fulfilled, it is advisable to seek legal advice to ensure execution of a compliant will to avoid your  family the costs, delays and uncertainty of an application to the High Court.  Furthermore, there is no guarantee that the Court will validate a will.  Additionally, in light of the restrictions imposed by the Acts mentioned above, seeking legal advice at the outset is even more imperative to ensure that, where there is a will, there is an inexpensive, simple way to give effect to your wishes. 

If you would like further information please contact Daniel Shore on 07 958 7477.