Having a valid will, also known as a ‘last testament’, is the only way after your demise to ensure that your assets are distributed to the people that you want them to go to, and in the way that you want them to be distributed to those people. However, the key word here is having a ‘valid’ will. That’s because a legal will or parts of a will can be deemed to be invalid before court. So if you have a will – and making a legal will in current health crises is something that everyone over the age of 18 should do – then you must review it time to time with your wills lawyer to make sure it’s still a valid will.
Things that can make a Will Invalid
A valid will had to be in writing, properly signed and be properly witnessed by two witnesses.
Before 1 November 2007, when the Wills Act 2007 came into effect in New Zealand, documents that were intended to be a legal will but that failed to meet certain formal requirements were deemed to be invalid as a will, often resulting in much-added heartaches, such as an intended beneficiary being deprived of an inheritance.
Some of the things that can make a last will and testament, or parts of it, invalid, is things such as the following:
i. If the will-maker was not of sound mind or was under-age when they made the will.
ii. If a will was drafted by a lawyer but the will-maker died before they could sign the will.
iii. If the will was made before the will-maker got married or entered into a civil union, or ended their marriage by court order.
iv. If the will-maker made handwritten changes to an existing valid but neglected to sign or initial the changes and have them properly witnessed.
v. If it can be shown that the maker of the will was in any way subject to undue pressure or influence to dispose of their property in a certain way.
Important Changes in Wills Act and Its Impact
Documents that were intended to be a legal will prior to 1 November 2007 but which failed to meet the various formal requirements of a valid will were deemed to be invalid.
However, the Wills Act 2007 has made some important changes by allowing a Court of Law, in certain cases, to validate documents that record the testamentary intentions of the deceased as a valid will.
The focus of these changes was to ensure that a will maker, who set out to express their genuine last will and testament, should not have those wishes frustrated merely by various legal technicalities. Now the Courts can validate certain documents, otherwise deemed as invalid previously, as valid wills. However, this does involve an application to the High Court under Section 14 of the Wills Act 2007 and still needs certain requirements to be met.
Rather than have to go through a legal rigmarole involving the Counts, it is recommend instead that you review your last will and testament every few years with your wills and trusts lawyer, just to be sure your will is still a valid will. Validating a will with the help of a lawyer should also be done when your circumstances change, for example, you enter into a civil union or de facto relationship, or when relationships break up or you get married.
