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will validation, Wills

Track changes indicative of intention

Wills that do not meet the requirements of the Wills Act 2007 as set out in s 11 of that Act can be validated pursuant to s 14 of the Wills Act.  As noted in Estate of Phillips at [25], “The critical enquiry is whether the documents does any or all of the things described in the definition of the word “will” in s 8 of the Act.”  Specifically:

8          Meaning of will

(1)        Will means a document that—

(a)        is made by a natural person; and
(b)        does any or all of the following:
(i)         disposes of property to which the person is entitled when he or she dies; or
(ii)         disposes of property to which the person’s personal representative becomes entitled as personal representative after the person’s death; or
(iii)        appoints a testamentary guardian.

(2)        When this Act refers to making, changing, revoking, or reviving a will, it means a will as defined in subsection (1).

(3)        When this Act refers to a will in any other context, it means whichever is appropriate of the following:

(a)        a will as defined in subsection (1); or
(b)        a document that changes a will as defined in subsection (1); or
(c)        a document that revokes a will as defined in subsection (1); or
(d)        a document that revives a will as defined in subsection (1); or
(e)        a codicil to a will as defined in subsection (1).

(4)        A person who may dispose of property during his or her life by a document creating a valid power or trust may dispose of property by his or her will by creating a power or trust of the same kind.

(5)        In this section, property—

(a)        includes—
(I)         a contingent, executory, or future interest in property; and
(ii)         a right of entry to property; and
(iii)        a right of recovery of property; and
(iv)        a right to call for the transfer of title to property; and
(b)        does not include property of which a person is a trustee when he or she dies.

(6)        Section 108 of Te Ture Whenua Maori Act 1993 overrides this section.

In determining whether a document is a will a Court is entitled to consider evidence of the deceased’s testamentary intentions and those intentions should not be “frustrated by technicalities” and a court “should endeavour to give effect to the deceased person’s intentions.  See Re Estate of Wong.

The will that was the subject of the validation application was located in the deceased’s computer.  The “will” was a subsequent version of the deceased’s final will, that had been up-dated with tracked changes.

The court noted a number of “confusing bequests” in the will and that the tracked changes had not been accepted.

The application to validate the electronic will was unsuccessful.

References:

  • Estate of Phillips [2020] NZHC 2644
  • Wills Act 2007, s 14
  • Re Estate of Wong [2014] NZHC 2554

Wills that do not meet the requirements of the Wills Act 2007 as set out in s 11 of that Act can be validated pursuant to s 14 of the Wills Act.  As noted in Estate of Phillips at [25], “The critical enquiry is whether the documents does any or all of the things described in the definition of the word “will” in s 8 of the Act.”  Specifically:

8          Meaning of will

(1)        Will means a document that—

(a)        is made by a natural person; and
(b)        does any or all of the following:
(i)         disposes of property to which the person is entitled when he or she dies; or
(ii)         disposes of property to which the person’s personal representative becomes entitled as personal representative after the person’s death; or
(iii)        appoints a testamentary guardian.

(2)        When this Act refers to making, changing, revoking, or reviving a will, it means a will as defined in subsection (1).

(3)        When this Act refers to a will in any other context, it means whichever is appropriate of the following:

(a)        a will as defined in subsection (1); or
(b)        a document that changes a will as defined in subsection (1); or
(c)        a document that revokes a will as defined in subsection (1); or
(d)        a document that revives a will as defined in subsection (1); or
(e)        a codicil to a will as defined in subsection (1).

(4)        A person who may dispose of property during his or her life by a document creating a valid power or trust may dispose of property by his or her will by creating a power or trust of the same kind.

(5)        In this section, property—

(a)        includes—
(I)         a contingent, executory, or future interest in property; and
(ii)         a right of entry to property; and
(iii)        a right of recovery of property; and
(iv)        a right to call for the transfer of title to property; and
(b)        does not include property of which a person is a trustee when he or she dies.

(6)        Section 108 of Te Ture Whenua Maori Act 1993 overrides this section.

In determining whether a document is a will a Court is entitled to consider evidence of the deceased’s testamentary intentions and those intentions should not be “frustrated by technicalities” and a court “should endeavour to give effect to the deceased person’s intentions.  See Re Estate of Wong.

The will that was the subject of the validation application was located in the deceased’s computer.  The “will” was a subsequent version of the deceased’s final will, that had been up-dated with tracked changes.

The court noted a number of “confusing bequests” in the will and that the tracked changes had not been accepted.

The application to validate the electronic will was unsuccessful.

References:

  • Estate of Phillips [2020] NZHC 2644
  • Wills Act 2007, s 14
  • Re Estate of Wong [2014] NZHC 2554

Discussion

2 thoughts on “Track changes indicative of intention

  1. It is a pity that kind of reasoning did not prevail in the matter involving the unsent text message in Queensland. Much like an accepted change, and unsent text message really says it all. Cf Re Nichol; Nichol v Nichol & Anor [2017] QSC 220

    Posted by David Marks | October 26, 2020, 12:49 am

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