07.11.2023

A well drafted will is a craft

The New Zealand do-it-yourself “DIY” attitude and way of life is not limited to home improvements, but sometimes also extends to wills.  Recently we had a DIY $5.99 fill in the blanks will across our desk.  This template will was incorrectly signed and failed to leave the estate (residue) to anyone.  Although, in the document, we could see the deceased’s intention as to who should be receiving the assets. 

Section 14 of the Wills Act 2007 (Wills Act) provides an avenue, through the Court, for a document that does not meet the strict statutory requirements of the Wills Act, to be validated.  This section has, in recent years, been used to validate incorrectly signed wills, as well as draft wills and suicide notes.

The Courts can also, using section 31 of the Wills Act, correct a will if it does not carry out the will maker’s intention or if there is a clerical error.  For our DIY will we applied under both section 14 to validate the will and section 31 to correct it, so that the will-maker’s intentions could be carried out by the appointed executor. 

A DIY will can create a stressful, costly and time-consuming experience for the will-maker’s family.  If a will-maker takes proper legal advice and has a will which is tailored to their unique life circumstances, then the stress, costs and time spent dealing with an estate can be greatly minimised.  There is an art to crafting a will, which is often underestimated and undervalued.

When drafting a will there are certain considerations to be taken into account which can impact on your freedom to gift your estate as you wish. 

These include matters such as your relationship status and how your assets (such as land and bank accounts) are owned.  Partners and spouses need to be considered when preparing your will as they have statutory rights under the Property (Relationships) Act 1976 and Family Protection Act 1955.  If partners or spouses are not appropriately provided for, then they would likely have a valid claim against your estate.

Consideration also needs to be given to your children, regardless of whether you have a good relationship with them or not.  If you do not provide for a child under your will, whether they are still under your care or over 18 years old and financially independent, then that child would more than likely have a valid claim against your estate under the Family Protection Act. 

Wills which are crafted to suit your personal circumstances and to reflect your statutory obligations to partners, spouses and children, will be more costly than a DIY will, but are invaluable to those who are left behind trying to interpret and manage your estate.  

For our DIY will, the Court was satisfied that the will was valid (despite the attestation clause failing to record the will-maker’s name).  The Court did not therefore need to formally validate the will under section 14 of the Wills Act.  The Court did however agree that the intentions of the will-maker were clear, so using its powers under section 31 of the Wills Act, corrected the will so as to fulfil the wills-maker’s intentions.

If you wish to discuss preparing or updating your will, please contact one of our experienced Private Wealth solicitors or your usual contact at Hesketh Henry.

Disclaimer:  The information contained in this article is current at the date of publishing and is of a general nature.  It should be used as a guide only and not as a substitute for obtaining legal advice.  Specific legal advice should be sought where required.

 

 

 

 

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Contact the expert team at Hesketh Henry.
Kerry
Media contact - Kerry Browne
Please contact Kerry with any media enquiries and with any questions related to marketing or sponsorships on +64 9 375 8747 or via email.

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