Under s 11 of the Wills Act 2007, in order to be valid, a will must be in writing and must be signed and properly witnessed. There are however sometimes occasions when wills are prepared by lawyer or maybe handwritten by the will maker, but never actually signed or properly witnessed. In such cases, pursuant to s 14 of the Wills Act 2007, the court has power to declare the document or documents valid as a will.
In order to grant relief, the court must be satisfied that the document:
(a) appears to be a will;
(b) does not comply with section 11; and
(c) came into existence in or out of New Zealand.
In declaring the will to be valid, the court is permitted to take into account:
(i) the contents of the document itself,
(ii) any evidence of the signing or witnessing of the document,
(iii) evidence of the deceased person’s testamentary intentions, and
(iv) evidence of any statement made by the deceased person.
It is important to note that as well as documents which have the physical form of a will, such as draft wills prepared by lawyers but not signed, documents which do not take the form normally expected of a will have been accepted as meeting this requirement. Informal documents which have been validated include handwritten or other documents which the deceased has prepared, such as a suicide note.
The court has stated that evidence of the deceased’s testamentary intentions must be cogent. Evidence that is corroborated by an independent third party or takes a documentary form will be helpful to any application.