RETHINKING THE WILLS ACT IN THE DIGITAL AGE

Posted by Bella Bycroft & Brydie Godsiff on September 1 2023 in News

The Wills Act 2007 (Act) is a vital piece of legislation, outlining the legal requirements for creating and executing a will. But with the rapid advancement of technology, could changes to this Act be on the horizon?

Section 11 of the Act requires that a will must be made in writing, signed by the testator, and witnessed by two or more witnesses who are present at the same time. This requirement may pose challenges in the future, particularly as technology advances and new forms of communication become prevalent. While many other countries have expanded the definition of what constitutes a valid will beyond a written document, it is still unclear whether New Zealand is ready to take this step.

New Zealand Judges have described section 14 of the Act as one of the most significant reforms to the validation of wills. Section 14 of the Act provides that the High Court may declare a will valid if it is satisfied that the document expresses the deceased person’s testamentary intentions.

As outlined by MacKenzie J in Re Campbell [2014] 1632:

“Section 14 of the Act made a quite fundamental change to the law concerning the validity of wills. Previously, a will that did not comply with the formalities required by law for the execution of a valid will was invalid. That meant that no matter how clearly the testamentary intentions of the deceased had been expressed, those intentions could not be given effect if the mode of expression did not comply with the formalities that the law required. Section 14 has been very beneficial in avoiding that outcome. Its utility is demonstrated.”

Section 14 applies to a document that appears to be a will, does not comply with section 11 of the Act, and came into existence in or out of New Zealand. Section 6 of the Act currently defines a document as any material on which there is writing –  but with a technological era, does the scope require widening?

In Wilson v Donnellan [2014] NZHC 1609, the Court took a liberal approach, stating that a recorded message does not meet the written requirement under the definition of document. But with the increase in alternative forms of communication like video messages, voice recordings and social media to express our thoughts, feelings and intentions, is this something our loved ones can rely on?

By comparison, the legal trajectory etched by the New South Wales (NSW) Successions Act furnishes a more expansive definition for the classification of a document. It now encompasses:

1. anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them, or
2. anything from which sounds, images or writings can be reproduced with or without the aid of anything else, or
3. a map, plan, drawing or photographs.

The NSW Supreme Court case of Re Estate of Wai Fun Chan, Deceased (2015) even established that a DVD recording was considered a document and therefore was held to be a valid codicil to the deceased's will (despite the deceased signing her will two days prior to her passing).

It may be a necessary next step to amend section 11 to allow for electronic modes of signing to satisfy the formal requirements under the Act. Technology is rapidly developing, and whether we like it or not, society is shifting with it too. In a Court system that is already backlogged and under significant pressure, (although perhaps premature), the time to amend our legislation could be around the corner.  Expanding the definition of what constitutes a document and how wills are executed, could decrease the number of invalid wills and reduce the number of section 14 applications. However, any changes must strike a balance between modernisation and safeguarding the integrity of the will making process.

If you have any questions regarding this topic, please contact us.

Kellie Bright | Special Counsel | kellie.bright@shieffangland.co.nz

Brydie Godsiff | Solicitor| brydie.godsiff@shieffangland.co.nz

Bella Bycroft | Solicitor | bella.bycroft@shieffangland.co.nz