High Court declines application to validate will, despite beneficiaries' consent

In the High Court decision Re: An application to validate the will of Olive Ruby Piper  [2021] NZHC 534, the Court refused to grant an application to validate a will, despite the beneficiaries’ consent.  

Background

Olive Piper executed her last will on 7 March 2011. In her will, she bequeathed $50,000 to each of her three nephews and left the residue of her estate equally to her five siblings. Public Trust was the executor.

On 6 March 2020, Olive contacted Public Trust to arrange an appointment in relation to her will. Prior to the appointment, Olive called Public Trust on 20 and 23 March 2020. Over the phone, she informed Public Trust that she was close with her three nephews and wanted them to each have a share in her residuary estate alongside her siblings.  

The draft will was prepared between 30 March 2020 and 1 April 2020 but was not emailed to Olive until 22 April 2020. Under the draft will, Olive’s nephews and siblings would each receive around $287,500. This was a material difference from her 2011 will, which provided for her nephews to receive $50,000 each and her siblings to receive approximately $430,000 each.

When Public Trust emailed the draft will to Olive, they asked her to confirm her instructions so they could arrange for it to be signed. Olive did not respond to Public Trust’s email and Public Trust did not follow her up for a response.  

Olive passed away on 3 July 2020 without executing the will. Public Trust applied to the High Court to validate the draft will under section 14 of the Wills Act 2007.

Validating a will under the Wills Act 2007

Section 14 of the Wills Act 2007 empowers the High Court to declare that a document that “appears to be a will” but does not meet the formal requirements under the Act is a valid will if the Court is satisfied the document expresses the deceased’s testamentary intentions. In considering whether to validate a document as a will, the Court may take into account:  

• the document;
• evidence on the signing and witnessing of the document;
• evidence on the deceased person’s testamentary intentions; and  
• evidence of statements made by the deceased person.

You can find further information on applying to validate a document as a will here.

High Court decision

The High Court held that the draft will emailed to Olive on 30 March 2020 did not express her testamentary intentions and therefore could not be validated as a will.  

The High Court considered that, because there was a significant lapse of time between Olive giving instructions on 23 March 2020, being sent the draft will on 22 April 2020 and her death on 3 July 2020, there was nothing to suggest that the draft will continued to reflect her intentions on the date of her death. In cases where the Court has validated draft wills, the draft will was prepared on the same day or within a few days of the deceased’s death. The Court found that, because Olive never responded to Public Trust’s email with the draft will, it was entirely possible that she changed her mind about creating a new will or was content with her 2011 will. The Court also considered it unlikely that Olive had simply overlooked the need to sign the new will.  

Conclusion

This case demonstrates that the court will not necessarily validate a draft will, even if all beneficiaries of the estate have consented to the application. The court must be satisfied that the document reflects the deceased’s testamentary intentions. A significant delay between the preparation of the draft will and the testator’s death is likely to create doubt as to whether the deceased’s testamentary intentions are still reflected in the draft will. Ultimately, the only way to avoid this situation and minimise the risk that your testamentary intentions may not be followed is to properly and promptly execute your will.

For more information about preparing a will or applying to validate a will, contact Morris.  

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