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When there’s (nearly) a Will, there’s a way

What happens if someone dies without a will, but a document exists which seems to express the deceased’s intentions? This article explores options to ensure the deceased’s wishes are fulfilled, notwithstanding the absence of a formal will.

We have previously written about the importance of having a proper will drafted (see here) but the reality is that sometimes people don’t quite get around to seeing their lawyer.

However, all is not lost.  If a document appears to be a will but does not comply with the formal requirements of the Wills Act 2007, the High Court may make an order declaring the document to be a valid will if it is satisfied that the document expresses the deceased’s intentions.  In reaching its conclusion, the Court may consider any evidence regarding the document, signature(s) on it (including any witness signature), testamentary intentions and statements made by the deceased prior to their death.

Cases that have addressed applications of this sort over the years have established:

  • There must be a document present for validation to be considered. However, the requirement is not limited to a singular document.  The Court has taken the deceased’s handwritten instructions, a solicitor’s file note, and a signed will instruction form all together to form the “will” for the purposes of an application;
  • A draft will stored electronically on a deceased’s computer, but not signed, may be validated as a proper will;
  • Instructions given over the phone and recorded in a solicitor’s file note may be validated;
  • Audio or audio/visual recordings are not “documents” for the purposes of the Wills Act and accordingly cannot be validated as a will.
  • A document will “appear” to be a will if it disposes of property.

The Court also has the power to validate codicils or changes to wills that have not been properly effected.  Again, there must be a document of some kind that the Court can validate.

High Court processes can be challenging and involve complying with a number of formalities.  Please contact us if you wish to discuss making an application to validate a will, or to challenge any such application.

These types of applications can be expensive and time consuming and therefore our advice is to always ensure that you have a properly documented will that is safely stored and accurately reflects your wishes.

 

This article is current as at the date of publication and is only intended to provide general comments about the law. Harkness Henry accepts no responsibility for reliance by any person or organisation on the content of the article. Please contact the author of the article if you require specific advice about how the law applies to you.

For further information

Jessica Gilby-Todd - Harkness Henry Associate

Jessica Gilby-Todd

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