It is possible to have an invalid will upheld by the High Court, in limited circumstances.
For a will to be valid, the usual requirements are:
- It must be in writing;
- It must be signed by the will-maker (or someone else directed by them to sign on their behalf, and in their presence);
- At least two witnesses must be present when the will-maker signs the document (or acknowledges that they signed it earlier, or directed someone else to do so); and
- Those witnesses must each sign the document in the will-maker’s presence.
If the High Court is satisfied that a document appears to be a will, but it does not comply with these requirements, they may make an order declaring the document valid. They will only do this if they are sure that the document expresses the deceased’s testamentary intentions.
It is crucial that there is a “document”, which is “any material on which there is writing”. Aside from the usual piece of paper, this can include documents stored on a computer and writing on things like fabric, a wall or even an eggshell.
There has been a situation where someone gave instructions for a new will to their lawyer over the phone, but died before it was even drafted. Of course the verbal instructions do not count as a “document”, but the notes taken by the lawyer during the conversation do – and in that case, were upheld.
In a case last month in the Wellington High Court, the deceased had written in a notebook that on her death everything could be given to her husband. She had also noted that this was her “last will” and signed it.
The Court heard evidence that it was the deceased’s writing and her usual signature. Her husband testified about conversations they had had over many years, in which she spoke about making a will. The general theme of those conversations was that she wanted to ensure he was left with sufficient assets to survive.
As the deceased had not ever executed a will before, she would be intestate if this document was not declared valid. The people who would have an interest in her estate on intestacy were her husband and parents. Both of her parents consented to the document being upheld. In light of all of these circumstances, the High Court granted the application and upheld the document as a valid will.
If you have any questions about this topic, please do not hesitate to contact our Wellington based family lawyers Debbie Dunbar, email email@example.com, phone (04) 495 9940or Maretta Twentyman, email firstname.lastname@example.org, phone (04) 495 8918.
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