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will validation, Wills

Invalid Musings

Violet Filomena Cox (Violet) made a number of wills, the last of which was a hand anotated copy of Violet’s last will and an unsigned draft.

The administators of Violet’s estate sought directions under s 66 of the Trustee Act 1956 as to how the estate should be distributed and for a declaration under s 14 of the Wills Act 2007 as to the validity of the other will documents.

In deciding the matter the court looked at Violet’s propensity to make new wills and how to determine whether to validate one of the later wills. In deciding not to exercise the discretion to do so Venning J noted that:

“[46] In the present case, given the frequent changes Violet made from time to time to her expressed testamentary disposition, it is most likely she changed her mind about making the changes to the will that had been drafted and that is why the Draft Will was not executed. Mr Cornegé put it well when he submitted that the changes in the documents were best seen as her thoughts as to possible changes she might confirm rather than her actual testamentary intention. They were “musings.”

Importantly, as noted at [49]:

“Both [Administator’s] evidence is that they were close to Violet. Theo regarded Violet and her husband Uncle Bill as a second set of parents. There does not appear to have been any reason for Violet to have removed them from the will. The Annotated and Draft Wills represented a significant change from the last will in that they disentitled Theo and Desirae who, with one exception, were substantial beneficiaries under each of the previous wills between 1997 and 2016 and particularly in relation to at least one of the Beach Road properties. There was no evidence to suggest any rational reason for this change. Related to that, there is also an issue that Violet’s last will documents did not dispose of the properties which had previously been left to Theo and Desirae. Mr Donovan was aware that issue needed to be addressed before the Draft Will could be finalised.”

Separately there were concerns raised regarding Violet’s testamentary capacity. As noted at [60]:

“In summary, while Violet definitely lacked testamentary capacity from 18 September 2016 when she suffered her fall and fractured skull, there is also at the least, some doubt that she would have had sufficient testamentary capacity from at least June 2016. Given that it appears the Annotated and Draft Wills were prepared closer to 23 August, that also supports the conclusion they do not represent her final testamentary intention.”

In conclusion:

“[61] The Court is not satisfied that the Annotated or Draft Wills represent Violet’s final testamentary intention.


[62] The application under s 14 of the Wills Act is dismissed. The application under the Trustee Act is also dismissed, as it is unnecessary…”

The decision is interesting in that it is an outlier compared against the the many, many will validation decisions that have been considered and granted. The distinction between “musings” and testamentary dispositions will not always be clear cut. However, Estate of Violet Filomena Cox provides some considered guidance.

References:

  • Estate of Violet Filomena Cox [2020] NZHC 1310

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