Validating testamentary intentions

Section 14 of the Wills Act 2007 provides for wills that do not comply with the formal requirements of the Wills Act to be validated. Validation is at the discretion of the Court.

Section 11 of the Wills act sets out the requirements of a valid will as follows:

In Public Trust v Forster the deceased (the late Sandra King), who was terminally ill at the time time contacted Public Trust, on what turned out to be the week before she died. The background of the circumstances in which Sandra King gave instructions for her will to a Public Trust employee 5 days later on 16 September 2023 are set out by McQueen J at [8] to [11] as follows:

[16] and [17] from McQueen J’s judgment set out the arguments in favour of the will being validated as follows:

The Court can validate a document that appears to be a will if (as set out at [20] by McQueen J “… it is satisfied that the document expresses the deceased person’s testamentary intentions. In making its determination as to whether to validate the document, the Court may consider the document; evidence on the signing and witnessing of the document; evidence on the deceased person’s testamentary intentions; and evidence of statements made by the deceased person.

As noted at [22] referring to McKay v Society of St Vincent De Paul New Zealand:

Importantly in Public Trust v Forster, notwithstanding the short time-frame, the person who took the deceased will instructions also took the necessary steps to confirm that she had the capacity to give will instructions and gave advice to the deceased while taking instructions. As noted in Hita v Hita, a contemporary decision of the High Court, the importance of advice in the context of a will, whatever the circumstances in which it is being made cannot be understated. While there is no legal requirement that a will is drafted by a professional, the value of competent advice is highlighted in the context of an application for will validation.

References:

• Public Trust v Forster [2023] NZHC 2339
• Wills Act 2007
• McKay v Society of St Vincent De Paul New Zealand [2022] NZHC 846
• Hita v Hita [2023] NZHC 2171