Simply Probate

Understanding the Validity of Wills in New Zealand

Published: 15 October 2023 • Updated: 15 October 2023

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?

For a will to be legally valid in New Zealand, it must meet several requirements under the Wills Act 2007:

1. The Will Must Be in Writing

A valid will must be in written form. This can be handwritten, typed, or printed. Oral wills (spoken instructions about how to distribute assets) are not recognised in New Zealand.

2. The Testator Must Be of Sound Mind

The person making the will (the testator) must:

  • Be at least 18 years old (with some exceptions for people in military service or who are married)
  • Have “testamentary capacity” - meaning they understand:
    • What a will is and what they’re doing by making one
    • The nature and extent of their assets
    • Who their potential beneficiaries are
    • The claims that people might reasonably have against their estate

3. Proper Execution of the Will

The will must be:

  • Signed at the end by the testator (or by someone else at the testator’s direction and in their presence)
  • Signed in the presence of at least two witnesses present at the same time
  • Signed by those two witnesses in the presence of the testator (but not necessarily in the presence of each other)

4. The Witnesses Cannot Be Beneficiaries

The witnesses to the will should not be people who are going to benefit from the will, nor should they be spouses or civil partners of beneficiaries. If a witness (or their spouse/partner) is a beneficiary, the will remains valid, but the gift to that witness may be void.

Common Issues That Can Invalidate a Will

Improper Execution

Many wills are challenged based on improper execution - such as missing signatures, witnesses not present when the testator signed, or other procedural errors.

Undue Influence

A will may be invalid if someone pressured, coerced, or manipulated the testator into making particular provisions in the will.

Lack of Knowledge and Approval

The testator must know and approve of the contents of the will. If there’s evidence suggesting they didn’t understand what they were signing, the will could be challenged.

Testamentary Capacity

If the testator lacked mental capacity when making the will (due to dementia, medication effects, or other factors), the will may be deemed invalid.

Fraud or Forgery

Any evidence of fraud or forgery can invalidate a will entirely.

Special Situations

Handwritten Changes and Notes

Crossing out sections or writing notes on a signed will does not legally change the will. Such modifications require a formal codicil (amendment) or a new will with proper witnessing.

DIY Wills

While do-it-yourself will kits are available, they can lead to problems if not properly executed according to legal requirements. Many challenged wills are those created without legal advice.

Online Wills

Online will services can be valid if properly executed according to the Wills Act requirements. However, they still need proper signing and witnessing.

What Happens If a Will Is Invalid?

If a court determines that a will is invalid, one of two things may happen:

  1. An earlier valid will may be used instead (if one exists)
  2. If no valid will exists, the deceased’s estate will be distributed according to intestacy rules under the Administration Act 1969

Under intestacy rules, distribution follows a fixed hierarchy starting with spouses/partners and children, then parents, siblings, and other relatives - which may not reflect the deceased’s actual wishes.

Ensuring Your Will’s Validity

To help ensure your will is valid:

  • Consider using a lawyer or professional will service
  • Ensure proper witnessing procedures are followed
  • Review and update your will regularly as your circumstances change
  • Store your will safely and inform executors of its location
  • Consider a contracting out agreement if you’re in a relationship and want to protect certain assets

Conclusion

The validity of a will is crucial for ensuring your wishes are respected after you’re gone. While it’s possible to create a valid will without legal assistance, seeking professional advice can help avoid common pitfalls and give you peace of mind that your will meets all legal requirements.

If you’re dealing with a potentially invalid will in a probate situation, professional legal advice can help you navigate the complex process and understand your options.