Posted by Shan Langston on September 23 2022 in News

The Wills Act 2007 sets out how wills should be prepared, executed, and administered.

For a will to be valid, section 11 of the Act, requires a will to be in writing, signed by the will-maker (or another at the will-maker’s direction in his or her presence), witnessed by two people together, and signed by the witnesses in the will-maker’s presence. 

But what happens if those formalities are not met? Cue section 14 of the Act…

Section 14 of the Act enables the High Court to validate a document as a will even if that document does not meet all the legal requirements of section 11. However, for the Court to declare the document valid, it must be satisfied that the document expresses the deceased’s testamentary intentions.

Section 14 was introduced on 1 November 2007.  It marked a radical change to the law concerning the validity of wills. Previously, a will that did not comply with the formalities required by law (now recorded in section 11) for the execution of a valid will, was invalid. Instead, the deceased’s estate would be dealt with and distributed in accordance with any earlier will, or if none existed, and the laws of intestacy.

Section 14 is a remedial provision that enables the Court to give effect to a deceased’s intention over a legal technicality. It provides for substance over form.  

In light of that purpose, the discretion conferred by section 14 has been described as residual only – a good reason would be required to refuse an order if the Court is satisfied that the document records the deceased’s testamentary intention. 

Since the passing of the section, there have been hundreds of cases seeking the validation of a document/will that does not meet the legal requirement of section 11 of the Act. The vast majority of which were successful. This has included documents that have been prepared a number of years before a deceased death (although there was evidence at the time shortly before death that the document continued to record the deceased’s testamentary intention), file notes prepared by a solicitor, and documents prepared by the deceased either in writing or electronically. Recently, in Re Meyer [2022] NZHC 2040, the High Court validated as a will an Excel spreadsheet prepared by the deceased. 

Section 14 (quite rightly) will not save a document where the deceased did not have testamentary capacity at the relevant time of the creation of the document (a lack of testamentary capacity will also invalidate a will that meets all the legal requirements of section 11 of the Act). 

What should you do if you face the unfortunate situation of a loved one’s wishes being recorded in a document that does not meet the legal requirements of section 11 of the Act? Seek legal advice. It is possible that the document may be validated by the Court.  If all affected parties agree, the application to the court may be done on a “without notice” basis (no need to serve other persons with the proceeding) and be determined on the papers (without the need for a hearing).    

Shan Langston | Special Counsel |

Kalev Crossland | Partner |

This paper gives a general overview of the topics covered and is not intended to be relied upon as legal advice.