Understanding the Validity of Wills in New Zealand

When applying for probate in New Zealand, one of the first questions that must be addressed is whether the deceased's will is valid. A will that doesn't meet legal requirements can be challenged or even deemed invalid, potentially leading to intestacy (as if there was no will at all).

What Makes a Will Valid in New Zealand?

Under the Wills Act 2007, for a will to be legally valid in New Zealand, it must meet the following requirements:

1. Testator Requirements

• Age: The person making the will (the testator) must be at least 18 years old, unless they are or have been married, in a civil union, or in a de facto relationship
• Mental capacity: The testator must have "testamentary capacity," meaning they:
  • Understand they are making a will and its effects
  • Know the extent of their property being disposed of
  • Understand who might reasonably expect to benefit from their will
  • Are not suffering from a disorder of the mind that influences the disposition of their assets
• Free will: The testator must make the will voluntarily, without undue influence or coercion from others

2. Formal Requirements

• In writing: The will must be in written form (handwritten, typed, or printed)
• Signature: The will must be signed by the testator or by someone else in the testator's presence and under their direction
• Witness requirement: The testator's signature must be made or acknowledged in the presence of at least 2 witnesses, who must both be present at the same time
• Witness signatures: Both witnesses must sign the will in the presence of the testator (though not necessarily in each other's presence)
• Witness information: The witnesses should include their addresses and occupations alongside their signatures

Common Problems That Affect Will Validity

1. Improper Execution

• Missing signatures (testator or witnesses)
• Witnesses not present when the testator signed
• Only one witness instead of two
• Testator not present when witnesses signed

2. Lack of Testamentary Capacity

A will may be challenged if there's evidence the testator:

• Was suffering from dementia or another cognitive impairment
• Was under the influence of medications that affected their judgment
• Had a serious mental illness that impacted their decision-making
• Was in a state of delirium due to illness or injury

3. Undue Influence

A will may be invalid if someone exerted pressure or manipulation on the testator, such as:

• Threats or intimidation
• Persistent verbal pressure
• Isolation from family and friends
• Taking advantage of physical or mental vulnerability

4. Fraud or Forgery

A will is invalid if:

• The signature was forged
• The testator was deceived about the nature or content of the document
• Pages were substituted after signing
• Provisions were added after execution

When Courts May Validate Otherwise Invalid Wills

The Wills Act 2007 gives New Zealand courts the power to validate a document that does not comply with all the formal requirements if they are satisfied that the document expresses the deceased's testamentary intentions. Factors the court considers include:

• The document itself and evidence of its preparation
• Evidence of the deceased's intentions
• Statements made by the deceased
• How closely the document follows legal formalities

Preparing for Potential Challenges

If you're concerned about potential challenges to a will, these steps can help establish validity:

1. Medical opinion: Have a medical professional assess and document the testator's mental capacity
2. Video recording: Consider video recording the will signing
3. Detailed notes: Have the lawyer prepare detailed notes of the instructions and execution
4. Professional witnesses: Use independent professionals as witnesses
5. Legal drafting: Have the will professionally drafted by a lawyer