The Ex-Files: Is my Dad’s will valid?
Question: My father recently died and although he signed a will, it was only witnessed by one person. The will we have found was signed around two years ago and we are not sure if it is the latest one. Is the will valid and is there any way to check whether it is the latest will?
Also, my father left half of his estate to a charity – could we challenge this?
Answer: There are certain requirements a will must meet for it to be valid under the Wills Act 2007. It must be in writing; it must be signed by the will-maker; and at least two witnesses, who must also sign the document, must watch the will-maker signing the will.
As a starting point, your father’s will would not be valid as it fails to comply with Section 11 of the Wills Act 2007 – there is only one witness, not the requisite two.
However, the High Court can declare a document that does not comply with Section 11 to be a valid will under section 14 of the act if satisfied the document expresses the deceased person’s “testamentary intentions”. In considering making an order the court can consider the document and other evidence relating to the preparation of the document, the deceased’s person’s testamentary intentions and statements made by them.
In recent cases, the High Court has readily made orders under Section 14 validating unsigned draft wills that had been prepared by solicitors based on the deceased’s instructions.
To continue reading the answer from this NZ Herald article, including other considerations around the validity of the will, click here for the full article.
