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Will Validation

Since the passing of the Wills Act 2007, all manner of testamentary documents have been declared as either valid wills or valid codicils.  As MacKenzie J observed in Re Campbell (deceased), at [4]:

“Section 14 of the Act made a quite fundamental change to the law concerning the validity of wills. Previously, a will that did not comply with the formalities required by law for the execution of a valid will was invalid. That meant that no matter how clearly the testamentary intentions of the deceased had been expressed those intentions could not be given effect if the mode of expression did not comply with the formalities that the law required. Section 14 has been very beneficial in avoiding that outcome. Its utility is demonstrated.

In a useful article published in 2013 (Nicola Peart and Greg Kelly “The Scope of the Validation Power in the Wills Act 2007” [2013] NZ Law Review 73), Professor Nicola Peart and Mr Greg Kelly analysed more than forty cases invoking s 14 since the Act came into force where they proposed that “the purpose of the validation power is “to give effect to the will- maker’s ascertainable intentions in whatever written form they may be found.”

For a court to declare a document a valid will (or codicil) under s 14 of the Wills Act 2007 the court must be satisfied that:

  • there is a document that reflects the will-maker’s testamentary intention
  • all those potentially affected have been given notice and will be heard if they wish to be.  In this regard it is noted this requirement will be satisfied if any person who might be affected has been advised by letter of the application and has been served with the application.  No formal renouncement or other is required if the person does not wish to be heard.
  • the application can be resolved by a process consistent with the remedial nature of the s 14, that is the application can be resolved promptly, without undue formality, inexpensively and efficiently; and, in the absence of any challenge.

Note that caution must be exercised when considering Australian decisions, as the Australian equivalent of s 14 has different words (In the Estate of Wong).

As noted In the Estate of Wong at [23] and [24]:

MacKenzie J in Re Campbell observed in July 2014 that there had been approximately 80 applications under s 14 since the Act came into force.  In all but four cases the document concerned had been declared valid. In only two cases had an application been refused. He noted, and I respectfully agree:

“The preponderance of successful applications does however indicate that the evidential burden on a s 14 applicant is not subject to a high threshold.”

The great benefit of the reform in s 14 is that it takes the eye of the Court away from form and makes it focus on substance and intention. A person who in good faith sets out to express testamentary intentions, should not have those thwarted by technicalities. The Court should give effect to the intention of the person who purported to make a will. However, it must be clear on the balance of probabilities that the document is intended to express the deceased person’s testamentary intentions.”

Where appropriate advertising should be carried out to confirm that no other valid wills are held.

Informal notes, that have been accepted as wills do not need to make perfect provision of the distribution of the estate.

Procedure

The process requires an application to the High Court. However, there is no prescribed procedure for the making of such applications. In the Estate of Catherine Mary Badruni  it was noted that the appropriate procedure is an originating application under pt 19 of the High Court Rules, which is an expedient process when there is no opposing party.   However, In the Estate of Damian John Murphy that proceeding was commenced as an originating application under Part 18 of the High Court Rules, and orders for service on all parties liable to be affected were made; following which the matter was determined on the papers.  In In the Estate of Wong it was noted that “There is no specific provision in the High Court Rules … for applications under s 14 of the Act (although this is a matter that is under review by the Rules Committee at present).. However, I agree with the observation of MacKenzie J in Re Campbell that where the application is not contested, the nature of the proceeding is such that the procedure under Part 19 of the Rules is appropriate.”

In Estate of Patterson (Deceased) the High Court gave leave for the matter to be commenced by way of originating application.

Testamentary Intentions

The task for the court is to establish the deceased’s testamentary intentions.

Documents declared as valid wills include:

  • unsigned drafts (see below)
  • wills that have only been signed by one of the two witnesses to the will-maker’s signature. See Re Wheeler (Deceased)
  • an unsigned will found together with a list headed “What Tracey Wants Done List”.  Both documents were written and dated the day before the deceased’s death.  The court approved the will but not the list, which contained some contradictory provisions, the court noting a preference to view the list as supporring the will and that discrepencies between the two would add an unnecessary layer of complexity if both were declared valid wills (In the Estate of Tracey Ann Aramoana (aka) Huia)
  • a group of documents that collectively dispose of the will-maker’s estate even if there are inconsistencies in the documents (Re Estate Kronfeld)
  • a letter named as a will left with a daughter and a brother to be opened on the “will-maker’s” death (Estate of Wright)
  • a hand amended draft will signed by the will-maker and a single witness (Estate of McVicar)
  • homemade wills (Richards v French)
  • a series of notes in a notebook including funeral instructions and instructions for the disposition of property written in informal language (Re Estate Van Den Berg)
  • an unsigned will prepared on a will kit form where the will-maker had discussed her wishes and uncertainties with her surviving children at different times (Estate Gloria Beaumont)
  • a will that appoints an executor but does not provide for how the will-maker’s assets are to be distributed, but where the will-maker told a witness to the will how she wanted her residuary estate distributed (Estate Su-Yun Chiang)
  • a will in electronic format in the computer of a professional will-maker’s associate (Blackwell v Hollings)
  • a completed will instruction form.  A will was drafted based on these instructions and formal advice was given that the will-maker consider whether the will met his moral obligations vis-a-vis his son as distinguised from his step-children (Lewis v Spence)
  • a will signed by the will-maker’s spouse where both spouses signed the wrong will (In the Estate of Subramaniam)
  • a will drafted on the will-maker’s instructions that remains unsigned due to the will-maker’s poor health (In the Estate of Nanette Lucy McLauchlin)
  • a suicide note drafted in “lucid but heartfelt” terms ( In the Estate of Michelle Jean Jeffries)
  • a draft will confired by the will-maker that is not signed as the will-maker is not physically able to due to illness (Re Meecham, deceased)
  • an unsigned draft prepared 8 1/2 years before the will-maker died in circumstances where the solicitors who prepared the draft made significant efforts to contact the will-maker, and a later note made by the will-maker confirmed his instructions (Tamarapa v Byerley)
  • a will where the signature was in fact witnessed but the witness failed to sign the will (Estate of Rowlands)

A draft will made in the following circumstances was declared valid (Estate of Smith [2013] NZHC 2429):

“[2] At the time of his death, Mr Smith was living at a residential care facility in Temuka. Mr Dalziel attended on him there on 20 December 2012, to deal with some matters relating to Mr Smith’s late wife’s estate, and to update Mr Smith’s will. Mr Dalziel took instructions for a new will. Mr Dalziel had with him for this purpose a photocopy of the August 2010 will. He went through each clause with Mr Smith and noted changes on the photocopy.

[3] Mr Dalziel explained to Mr Smith that it was unlikely that the new will could be signed before Christmas, but that he would be in touch in the New Year. Mr Dalziel had no reason to think that there was any particular urgency in having the will signed.

[4] The new will was drafted to reflect the instructions which Mr Dalziel obtained. It was typed on the day of Mr Dalziel’s visit to Mr Smith, but it was not returned to him then, and on his return to the office in January 2013 the document was inadvertently misplaced, so that it did not then come to Mr Dalziel’s attention. Mr Smith died on 20 February 2013, before the will could be signed.”

Delay

Where there has been a delay between giving instructions and finalising the will; a question the court must consider on a s 14 application is – was the delay because of a change of mind; or was there some other reason such as too busy; thought the matter was dealt with; will-maker had a tendency not to complete tasks in a timely fashion: see Amundson v Raos.

As noted in the Estate of Uruamo “Care is needed that the lengthy period does not reflect a change in heart rather than inadvertence or misunderstanding.”  That case refers to Re Gray (Dec’d) where the delay was 9 years and Re Cornelius (Dec’d) where the period was 3 three years in circumstances where the will-maker just never got around to it.

Executors / Administrators

An application under s 14 can also be used to remove and appoint an executor / administrator (In the Estate of Wong).

Codicils

A codicil can also be declared valid in accordance with s 14 of the Wills Act as the definition of a will includes a codicil (Wills Act, s 8(3)).  See In the Estate of Lorna Horton.  Also see In the Estate of Evelyn Elizabeth Robins.

This will also be the case where there is a will and multiple codicils, note of which have been correctly executed (Re Joseph Rooney).

Change of mind

R passed away shortly before an appointment to sign a draft will – the draft will had been prepared and amended on R’s instructions because she was having “second thoughts” about an earlier will she had signed – that signed will excluded a stepchild on the basis of other provision being made, and did not directly take into account financial assistance R had given a grandchild – in the draft will R included the stepchild and also accounted for the help to her grandchild – these adjustments would of course change the way her estate was distributed between her children and stepchildren, meaning individual bequests, which were expressed as percentages, would be altered – nevertheless all parties consented to the application – applicable principles – consideration of circumstances and R’s expressed testamentary intention – Held: order made declaring that R’s draft will is valid. Estate of Regan [2016] NZHC 2406

Secret

In some instances a will-maker might wish to make a will that a partner or spouse may not by happy with to avoid conflict.  See Wardill v  Anderson where the Court validated a unsigned will that was left unsigned due to the will-maker’s illness.  The claim was brought by the solicitor who drafted the will who provided evidence of her instructions but agreed to abide by the decision of the Court. The  Court was satisfied that the will-maker’s partner controlled her interactions.  Palmer J noting at [47] to [50]:

“[47] I also consider there is a good explanation of why the formalities required for the document to be a valid will were not fulfilled before Sandy’s death. Sandy avoided conflict. She could not drive. She was confined in a hospice, in a hospital and at home during the period from 14 May until her death on 30 May. John was with her most of the time. She had kept her instructions to Ms Wardill secret from John. It would have been very difficult for her to arrange to sign the will in that period without John finding out. That is consistent with Ray’s evidence about Sandy saying in early May 2015 signing the will was becoming difficult.

[48] John’s evidence is inconsistent as to whether he knew about the draft will. His affidavit evidence was that he did and he provided an explanation of what Sandy told him about it. If that were true I consider Sandy’s account to John reflected her desire to downplay what she had done and to avoid conflict with him. However, I accept John’s evidence under cross-examination in which he stated he knew nothing about the draft will until six weeks after Sandy’s death.

[50] Sandy and John loved each other. John provided good care for her and I consider Sandy was concerned to keep the peace between her and John in her last days. One way of doing that was not to tell John about the draft will and not to take steps to sign it which would have risked him finding out about it. That is consistent with her wish to avoid the conflict between John and Chris by stopping visits in the last few days before her death. I am satisfied this explains why Sandy did not take steps to attend to the formalities that would have made the draft will valid.

[51] On the basis that the draft will represented her genuine testamentary intention and that there is a good explanation for why the formalities required for the document to be a valid will were not fulfilled before Sandy’s death, I consider the draft will should be validated.”

Evidence

In determining whether or not to declare a will valid, a court will consider evidence that might not normally be admissible.  For example in Re Bishop (Deceased) the court accepted the hearsay evidence (as a matter of  pragmatism) of a friend of the will-maker’s that his cousin would be his son’s guardian if anything happened to him (as was provided for in the unsigned  draft will).

In deciding to challenge the validity of a will it is important to ensure that there is sufficient evidence to do so.  Where there is not, the applicant may be liable to costs.  In Kirner v Faloon  the Court noted at [8] and [9] that:

“Costs normally follow the event. High Court Rule 14.2 sets out the principles applicable. The Court has a residual discretion to award costs.

Probate proceedings bring some different considerations. McGechan at HRPt 14.15 refers to Fraser v Chalmers (1997) 11 PRNZ 348 where the Court made no costs award in respect of an unsuccessful challenge to the testator’s capacity, and all costs were borne by the Estate.”

While it was acknowledged that the applicant was due a small contribution ($2,000) to her costs of over $11,000 due to her raising concerns over the will.  However, without any proper supporting evidence, she should not have progressed the matter further.  Also see Kirner v Faloon  for the background to the costs application.

Unsent text message

An unsent text message written just prior to death by suicide was upheld as a valid will by the Supreme Court of Queensland under the Queensland equivalent to s 14 of the Wills Act.  See Re Nichol; Nichol v Nichol & Anor .

Invalid Wills

Although to date it happens very rarely, the court has refused applications to  declare certain documents as valid wills.  In Fitzgibbons v Fitzmaurice)a suicide note addressed to the deceased’s executor removing the deceased’s only sister and leaving all his assets to the Salvation Army as the court was not satisfied that the evidence established that the deceased had testamentary capacity when the note was written. The question for the court was stated as determining  whether Mr Hughes’ “… seemingly intemperate and rash decision was simply that; or was the product of an unsound mind?”  In that case the court held that “The evidence does not establish that Mr Hughes had testamentary capacity when he wrote the suicide note and does not therefore satisfy the requirements of s 14(2) of the Act, as expressing Mr Hughes’ testamentary intentions”.

Is it a will?

What about the position where no-one knows?  In the Estate of Barbara Marsh there were a number of documents prepared by the deceased that might comprise testamentary dispositions.  Might.  What is the executor to do?  The answer might be to apply for probate in solemn form, serve it on all interested parties, prepare a good clear memorandum for the court explaining the issues with each possible subsequent testamentary disposition – and if no interested party applies pursuant to s 14 to have any of the subsequent documents validated as a will, then probate can be granted.

Valid codicils

Documents declared as valid codicils include a letter written by the main residuary beneficiary, but signed by the will-maker (Re Estate Butler)

Draft wills

A draft will can be approved as a will.

A draft will can be approved after a number of years. In the Estate of Aston Wyatt Greathead  a delay of three years did not prevent the Court making an order that the will was valid.  In that case the will-maker and his wife instructed a solicitor to prepare draft wills. The will-maker expressed satisfaction with his will but said he wanted to wait until his wife signed her will before he signed his.   The will-maker subsequently lost mental capacity and a property manager was appointed.  The property manager erroneously believed and order  had been made allowing the property manager to sign the draft will. IN this the case the judge was  satisfied that the will represented the will-maker’s testamentary intentions.

When considering whether to do so the Court will consider whether the will was unsigned because the will-maker:

  • had a change of mind about making a will (Re Estate of Hickford)
  • overlooked or forgot about signing the will (Re Estate of Hickford)
  • did not think that anything further was required (Re Estate of Hickford), or
  • intended to sign the will but just never get around to it before his or her death (Gladwin v Public Trust, Livingstone v Livingstone)
  • approved the will made following a terminal diagnosis but was unable to sign the will due to worsening health (In the Estate of Catherine Mary Badrun)
  • (In the Estate of Agnes Anne Baldwin)

Discretion

Section 14 is framed in permissive terms, meaning that the court has a discretion whether or not to make an order, even if the court is satisfied that the will reflects the will-maker’s intentions.  Less clear is what matters the court can take into consideration when deciding whether to exercise that discretion.  In Balchin v Hall [2016] NZHC 837 the court helpfully considers the general principles that underlay the exercise of judicial discretion, then concluding that the discretion conferred by s 14 is only of a residual nature, and that there would need to be good reasons to refuse an order.  The facts of Balchin v Hall are interesting in that unlike, the usual s. 14 scenario, what was sought was an order declining to validate a will.  The will in question had been probated in error, despite the will not having been properly executed. Probate was revoked by consent.  An application of the will to be validated followed, with the  plaintiffs then seeking to have an early will acted on, while the defendants wanted the later will validated.  The later will provided that the plaintiffs would not acquire an interest in the estate until they each turned 50.  The court accepted that a subsequent application to vary or revoke the will might be successful noting at [23] that “The plaintiffs both have young families and are in modest financial circumstances. In their affidavits they say that distribution of their father’s estate now would have a significant positive impact on their lives and those of their children. In these circumstances, it may well be that if the 2008 document were validated an application under s 64A to vary or revoke it would succeed. However, that possibility, or even probability, is not a sufficient reason to refuse validation.”

The court went on to say:

[24] An order under s 64A involves the exercise of a discretion. On the Re Greenwood approach the Court puts itself in the shoes of the non-consenting beneficiaries and acts on their behalf. This requires detailed and careful consideration of the interests of both existing children and any future unborn children. Declining to validate the 2008 document would effectively usurp that process and the exercise of the discretion.

[25] Moreover, given that s 64A is a flexible remedial provision capable of striking a careful balance any order made under s 64A would not necessarily reflect the 2007 will under which the estate would be distributed without conditions. There have been cases where, for example, the contingent interests of children have been provided for by their parents establishing a bare trust into which their share was paid.

[26] I therefore conclude that this is not an appropriate case in which to exercise the discretion under s 14 to decline to validate the 2008 document and make an order validating the 2008 document.”

Avoiding orders under s 14

While it is important that wills that might otherwise be invalid can be confirmed in accordance with s 14 of the  Wills Act, the cost and time of such an application is often avoidable.

Will instructions should always be acted on promptly.  However, this is obviously more important with older clients.  In the estate of Frank Joseph Fowler Mr Fowler gave his lawyer hand written instructions on or about 23 May 2013.  Mr Fowler’s lawyer then met with him on 7 June to discuss the instructions.  More than 7 weeks later Mr Fowler called on his lawyer to see if the new will had been drafted, at which point it had not.  appointments made in August and September were cancelled due to Mr Fowler’s ill health, and Mr Fowler died in October 2013 without executing his will.  While no comments were made about the lawyer’s inability to prepare the will between 23 May 2013 and 31 July 2013, this level of delay seems unreasonable in the context of a will without better explanation than “[the lawyer] had not had an opportunity to prepare the new will.”.

Prompt attention to will instructions can avoid the need for subsequent applications for drafts to be declared valid, plus of course also avoiding the risk of such an order not being made and the putative will-makers wishes not able to be actioned.

Obstacles

Before making an application it is important to consider what evidence might be needed to satisfy the court as to the provenance of a document that might meet the definition of a will.  In Estate of Rachel Gloria Kirner the court notes that information to be provided might include:

An affidavit from the applicant explaining any delayed in finding the putative will

Evidence of the deceased’s handwriting, preferably multiple samples.

Evidence as to why a deceased may have changed previous intentions.

Costs

Very importantly – what will it cost?  Where a matter is contested costs will generally be more than where there is no challenge.  In the case of a challenge to an application to validate a will the costs will come under three (or more) heads:

  • The Estate
  • Beneficiaries seeking to preserve their (better) position under the will in respect of which validation is sought
  • Beneficiaries seeking to preserve their (better) position under a prior will, or intestacy an oppose the validation application.

In Harris v Taylor Ms Harris sought costs against her brother (Mr Taylor) who challenged an ultimately successful application for validation.  The Estate did not seek its costs – the Court noted that this was “properly borne by [Ms Harris] as a beneficiary.”

Ms Harris’s personal costs were $15,716.50 + GST. She argued that she was doubly penalised as meeting her own costs and the Estate costs, in her capacity as the primary beneficiary.

Mr Taylor sought costs of $23,600 + GST.

In Harris v Taylor the costs lay where they fell – each party being held partly accountable for how matters played out; both around the making of the new will – and at hearing.  The case emphasises the fact that earlier “rules” or “practices” that estate challenge costs are met from the Estate, cannot be relied upon.  A good decision for an overview of current cost decisions in Estate matters.

References

  • Wills Act 2007, s 14
  • Evidence Act 2006, s 18
  • Re Estate Kronfeld [2013] NZHC 1810
  • Re Estate Butler [2013] NZHC 1554
  • In Re Estate of Hickford HC Napier CIV 2009-441-369, 13 August 2009
  • Estate Mann [2013] NZHC 1201
  • Estate of Burnett [2013] NZHC 1725
  • Estate of Alan Frederick Wright [2013] NZHC 2144
  • Estate of McVicar [2013] NZHC 2201
  • Estate Van Den Berg [2013] NZHC 1028
  • Estate Gloria Beaumont [2013] NZHC 2719
  • In the Estate of Catherine Mary Badrun [2014] NZHC 560
  • In the Estate of Damian John Murphy [2014] NZHC 548
  • In the Estate of Su-Yun Chiang [2014] NZHC 6
  • Blackwell v Hollings [2014] NZHC 667
  • Lewis v Spence [2013] NZHC 3420
  • Fitzgibbons v Fitzmaurice [2014] NZHC 710
  • In the Estate of Subramaniam [2014] NZHC 1484
  • In the Estate of Frank Joseph Fowler [2014] NZHC 371
  • In the Estate of Tracey Ann Aramoana (aka) Huia [2014] NZHC 537
  • In the Estate of Nanette Lucy McLauchlin [2014] NZHC 1040
  • In the Estate of Michelle Jean Jeffries [2014] NZHC 1996
  • Re Meecham, deceased [2014] NZHC 2303
  • Tamarapa v Byerley [2014] NZHC 1082
  • Fitzgibbons v Fitzmaurice [2014] NZHC 710
  • In the Estate of Agnes Anne Baldwin [2014] NZHC 2787
  • In the Estate of Aston Wyatt Greathead [2014] NZHC 3068
  • Re Campbell (deceased) [2014] NZHC 1632
  • Re Bishop (Deceased) [2014] NZHC 3355
  • Re Wheeler (Deceased) [2014] NZHC 3118
  • In the Estate of Lorna Horton [2014] NZHC 3174
  • In the Estate of Wong [2014] NZHC 2544
  • Estate of Patterson (Deceased) [2015] NZHC 20
  • (Re Joseph Rooney) [2015] NZHC 461
  • Estate Rachel Gloria Kirner [2015] NZHC 1973
  • Amundson v Raos [2015] NZHC 2422
  • In the Estate of Barbara Marsh [2015] NZHC 2468
  • Estate of Rowlands [2015] NZHC 2869
  • Kirner v Faloon [2015] NZHC 2876
  • Harris v Taylor [2016] NZHC 483
  • Balchin v Hall [2016] NZHC 837
  • Richards v French [2016] NZHC 1647
  • Estate of Regan [2016] NZHC 2406
  • In the Estate of Evelyn Elizabeth Robins [2016] NZHC 2994
  • Wardill v Anderson [2016] NZHC 3114
  • Nicola Peart and Greg Kelly “The Scope of the Validation Power in the Wills Act 2007” [2013] NZ Law Review 73
  • Estate of Uruamo [2017] NZHC 931
  • Re Cornelius (Dec’d) [2012] NZHC 653
  • Re Gray (Dec’d) [2014] NZHC 1082
  • Re Nichol; Nichol v Nichol & Anor [2017] QSC 220

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