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Validating imperfect wills

Published: 5th October 2018

Author: Kimberly Lawrence, Greg Kelly Law Ltd

Published in: Trust eSpeaking, Spring 2018. No 27

What can be done?


For wills to be valid they must comply with a number of legal formalities; they must be in writing and there must be two witnesses who must attest to the will-maker signing the will in their presence.
However, some people create their own wills that do not comply with these formalities and these wills could be invalid. Sometimes people will express what they want to happen to their property after their death in an electronic document, such as a text message.
Since 2007 the High Court has had power to validate these documents so that they have the effect of being a valid will, even though they do not comply with the legal requirements of the Wills Act 2007.
When a person dies, you will usually find their will and contact their lawyer. Usually their will is perfectly in order, but sometimes it’s found that the will isn’t legally compliant. What can be done?


Two-step process


There is a two-step process when it comes to validating non-compliant wills. Firstly, there must be a document in existence which appears to be a will but does not comply with the formal requirements. Secondly, if there is such a document in existence, the court will then consider whether the document expresses that person’s ‘testamentary intentions’, or what they wanted to happen to their property after they die.
A number of ‘documents’ have been validated as wills. Electronically stored documents can meet the requirement that a ‘document’ be in existence. In a 2014 case , a draft will stored on a computer was validated. An email expressing what was to happen to a person’s property after their death was validated as a will in a 2015 case .
While New Zealand courts have not yet validated a text message as a final will, the Queensland Supreme Court has validated an unsent draft text message as a final will.
As a will must be ‘a document’ to be validated, oral instructions for a will cannot be validated by the High Court. However, if a person’s wishes have been recorded in writing then a document would exist which could be validated. In a 2012 case , instructions were given over the phone to a lawyer. The lawyer took notes, but did not prepare the draft will before the person died. The lawyer’s notes were validated as the deceased’s final will.
In a case this year , an audio recording of the deceased’s will instructions did not qualify as a ‘document’, however, the written notes taken of his oral instructions were a document which the court could, and did, validate. The court also said that in the modern world, with “widespread use of smartphones and other personal devices”, it is increasingly likely that people having important conversations will record their oral instructions. It was suggested that while a recording itself might not qualify as a ‘document’ which could be validated as a will, a transcript of such a recording might be validated.


Validating a will can be expensive


While going to court to get a non-compliant will validated can be expensive and time-consuming, informal documents which express a deceased person’s wishes can be validated to dispose of their property after their death in the manner that they wanted.
It is highly likely that in future, an increasing number of electronic documents such as, for example, Facebook posts, might be validated as wills.
Even though the High Court can validate imperfect wills, we would recommend that you ensure your will is correctly drawn up and that you sign it in front of two witnesses. This will help save not only time and money, but also make life much easier for the family you have left behind.

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