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will validation, Wills, Wills Act

Destruction of notes factor in failed application for will validation

Re Estate of Olive Ruby Piper relates to an application for an order declaring  that a draft will prepared by Public Trust prior to Olive Piper’s death is her last will and testament pursuant to s 14 of the Wills Act 2007.

The legislative basis is set out at [2] and [18] as follows:

[2] The application is brought pursuant to s 14 of the Wills Act 2007. That section applies to a document that appears to be a will but does not comply with s 11 of the Act. This Court can make an order declaring the document a valid will if it is satisfied that the document expresses the deceased’s testamentary intentions. The Court can consider the document, evidence in relation to its signing and attestation, evidence in relation to the deceased’s testamentary intentions and evidence of statements made by the deceased.

[18] Section 14 operates to save documents where the will-maker has expressed completed testamentary wishes but did not follow the formal requirements prescribed by law. There are four requirements before the section can be applied: (a) the document it is sought to validate must appear to be a will; (b) the document must not comply with s 11; (c) the document must have come into existence in or out of New Zealand; and (d) the Court must be satisfied that the document expresses the deceased’s testamentary intentions.

Applications for validation under s 14 of the Wills Act are not uncommon, and by way of general observation are regularly granted.  However, in Re Estate of Olive Ruby Piper the declaration sought was not granted for the reasons set out in [21] of the decision, which also sets out the relevant background.

[21] In the present case, there was a significant time lapse between the giving of the instructions (23 March 2020), the forwarding of the draft to the deceased (22 April 2020) and the deceased’s death (3 July 2020). The deceased did not confirm that the document sent to her electronically on 22 April 2020 accurately recorded her testamentary intentions. The draft will may have encapsulated the deceased’s testamentary intentions as at 23 March 2020, but there is nothing to suggest that the draft continued to reflect her intentions. It is entirely possible that the deceased changed her mind about making a new will. She may have decided that she was content with her 2011 will. It is unlikely that she overlooked the need to sign the new will. There is no suggestion that the deceased lacked mental capacity; Ms Neru had expressly asked for confirmation that the draft will was correct, and pointed out to the deceased that the Public Trust would then finalise the document and forward it out to her for execution. The fact that the deceased did not respond to the Public Trust’s email of 22 April 2020 suggests that she did not want to proceed with the draft will. It certainly cannot be assumed that she wanted to do so. If the deceased had replied to the Public Trust and confirmed that the document accurately recorded her testamentary intentions or if there had been a much shorter time lapse between the giving of the instructions, the email enclosing the draft will and the deceased’s death, I may have been more inclined to validate the electronic draft under s 14. There was however no confirmation and there has been not inconsiderable delay. Moreover, the handwritten instructions taken by Ms Neru on 23 March 2020 have been destroyed. There is no way to check that the entries in the Public Trust’s will system, which find expression in the draft will, accurately record the instructions given to, and written down by, Ms Neru on 23 March 2020.

The important message for will-makers and professionals is to ensure that will instructions are responded to promptly, that there is follow up after sending out draft wills and that notes that relate to wills are kept in their original form.

References:

  • Re Estate of Olive Ruby Piper [2021] NZHC 534
  • Wills Act 2007, s 14
  • Re McLeod [2020] NZHC 1992
  • Re Scott [2018] NZHC 3177

Discussion

One thought on “Destruction of notes factor in failed application for will validation

  1. We are assuming that the draft will accurately reflected the willmaker’s instructions. We are also assuming that the willmaker had testamentary capacity until her death and that there was no undue influence or duress placed on the willmaker prior to giving instructions. Furthermore we are not told how material the changes were to the 2011 will and to what prompted or motivated the changes. In any event a period of just under a month from the adviser receiving the instructions and the time of sending the willmaker the draft will was clearly inexcusable.

    Posted by Nazir Ahmed | April 5, 2021, 8:17 pm

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