Expert advice key for estate planning
A recent case about the validity of a “homemade” will highlights the importance of having a clear plan in place for when you die – and ensuring your will is done properly to avoid costly negotiations after you have gone.
Issues in contention in the case of a couple who used The New Zealand Will Kit to write their wills included whether the deceased understood the terms of her will and how the signing of documents was only witnessed by one person.
Grace and her husband Billy’s wills were handwritten using the standard form from the Will Kit book and the contents of their wills substantially mirrored each other. They left the bulk of their estates to each other in the first instance, and then to their daughter if they did not survive each other. Their son was left out in both of their wills.
Grace and Billy signed their wills in each other’s presence with a JP as the independent witness. However, the requirement to have a second independent witness involved was overlooked, which made the will invalid. Sadly, Grace died unexpectedly a few years later.
After discovering the will was defective, Billy applied to the High Court to have it validated. Their son opposed this application, arguing that Grace was unaware of the terms of her will and did not approve them.
The High Court considered three issues when determining the validity of Grace’s will:
- Whether she knew and understood the terms and effect of her will, taking into consideration her command of English
- How she did not have any independent advice
- Whether she was in the presence of, and under the influence of, Billy at the time of signing her will.
The High Court declined Billy’s application to validate the will on the basis that he had failed to provide evidence that Grace’s command of English enabled her to understand and approve the terms of her will.
Billy then appealed the High Court’s decision.
The Court of Appeal overturned the High Court’s decision and subsequently declared Grace’s will valid after Billy gave further evidence to support his argument. The Court of Appeal was satisfied that Grace’s English was not limited to simple greetings and that she had sufficient command of English to be able to understand the terms of her will.
As well as highlighting the importance of receiving legal advice when navigating the complexities of estate planning, there are some other key lessons to be learnt from the case.
The legal requirements about what constitutes a valid will are set out in section 11 of the Wills Act. It is more cost effective to follow these requirements when you make your will than your executors paying the cost of applying to the High Court after you have died to declare the will valid.
Solicitors are required to consider a will-maker’s vulnerability and mental capacity at the time of making and signing a will. It is key for anyone making a will to obtain legal advice as this reduces the risk of someone challenging the validity of a will for either reason after they have died.