The Wills Act 2007 ("the Act") came into force in New
Zealand on 1 November 2007. It replaced the Wills Act 1837 which
was a United Kingdom statute and which had been amended a number of
times over the years.
There were a number of significant changes to the previous
legislation which were enacted in the Act. One of the most
important changes is section 14 of the Act, which empowers the
Court to declare a document that is not a valid Will under the
requirements of the Act, to be a valid Will, if it is satisfied
that the document expresses the deceased's testamentary
These changes follow similar legislation in Australia and the UK
which has allowed the Courts to validate or correct documents that
do not meet the specific requirements for a Will, but do express
the deceased's intentions. Under section 14, the Court can
declare a document to be a valid Will, where the document appears
to be a Will, but does not comply with section 11 of the Act (see
below) and has been executed either in New Zealand or overseas.
The Court may make an order declaring the document to be a valid
Will, if it is satisfied that the document expresses the
deceased's testamentary intentions. In making such an order,
the Court may consider the nature of the document, evidence
regarding the signing and witnessing of the document, evidence of
the deceased person's testamentary intentions and evidence of
statements that were made by the deceased person.
Section 14 therefore applies to documents that appear to state
the deceased's testamentary intentions, but which do not comply
with section 11 of the Act. Section 11 states that, for a document
to be a valid Will, it must be in writing and must be signed and
witnessed by at least two witnesses, who must be together at the
time that the deceased signed the Will, and they must each sign the
document in the presence of the person who made the Will.
Since the Act came into force, there have been a number of cases
that have come before the Court. Some examples of these cases
illustrate that the court applies a liberal interpretation to
a document called a "Will", didn't appoint an
executor/trustee, signed by the Will-maker and only one witness
(Court held "valid Will");
a document called a "Will", signed by the will-maker,
no witnesses (Court held "valid Will");
a Will was drafted by the Will-maker's lawyer but not
signed by the Will-maker at all as he didn't think that he
needed to sign anything and thought he had done everything
necessary (Court held "valid Will");
a document called a "schedule of intentions", signed
by the Will-maker, no witnesses (Court held "valid
a file note written by the Will-maker's lawyer that
recorded the Will-maker's intentions, nothing was actually
signed by the Will-maker, who died before the lawyer drafted the
Will (Court held "valid Will").
In conclusion, although the power given to the Court under
section 14 has been welcomed by lawyers to assist in those cases
where a formal Will hasn't been completed (for genuine
reasons), everyone should bear in mind there is no substitute for a
professionally drafted and properly signed Will to give effect to
your wishes upon your death.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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To ensure that all possible problems are considered and addressed, the transactions must be appropriately documented.
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