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.
It is likely your father’s will could be validated, given that he has signed the will and there is one witness. The lack of a second witness is unlikely to cause the court to consider the invalid will does not represent your father’s testamentary intentions.
If the will is not validated then the estate will fall to be divided pursuant to any earlier will, or if there is no valid will, pursuant to the intestacy rules.
To locate any earlier or later wills, the first step would be to inquire with your father’s lawyer. Their details may be on the will that you have found.
If you don’t know the details of your father’s lawyer, another option is to place a will notice in the New Zealand Law Society newsletter or a death notice in the newspaper. This could notify a law firm holding any will.
As far as challenging the gift made to the charity in your father’s invalid will, that gift will only stand if the will is validated. It may be that you are better-positioned if the will is not validated, but you need to consider honouring your father’s testamentary intentions.
Otherwise, there is little you can do, except perhaps bring a claim under the Family Protection Act 1955. However, such a claim would focus on whether adequate provision has been made for you, rather than question provisions made for others such as the charity.
Sometimes a court when assessing moral duties will look at when they are giving money to a beneficiary that they have no moral duty to provide for (eg a charity) less favourably than if they were dividing their estate between beneficiaries, they have a moral duty to provide for and not providing for them properly.
What is adequate depends on a range of factors, including the size of the estate, the competing claims and the relationship between the deceased and the claimant. If you are financially independent and provision has been made for you that recognises your position as your father’s child, then it would be difficult to argue you should receive more. Any application would need to be brought within 12 months of probate.
This article was first published in the NZ Herald.
