Validity of a Will

The signing stage is one of the most vital steps in the process of creating a valid will. Section 11 of the Wills Act 2007 sets out what requirements must be met in order for a will to be declared valid.

1. The will must be in writing; and
2. Must be signed by the will maker, or another person directed by the will maker, dated and witnessed by at least 2 independent witnesses who must see the will maker or his/her appointed person sign the same.

If the signing has not been completed correctly, section 14 of the Wills Act 2007 gives the High Court the ability to declare a will valid if it does not meet the requirements noted above.

Section 14 applies to a document that appears to be a will and does not comply with the above. The High court may make an order declaring that a document is a valid will if it is satisfied that the document expresses the testamentary intentions of the deceased.

In a recent High Court case KHOPHIMAI v LAURENSON, where the deceased’s will was only signed by one witness, an application under section 14 was made by the sole beneficiary of the will and de facto partner of the deceased. The application was opposed by the deceased’s seven children who contented their 80 year-old father was in failing health and that his de facto partner had exerted undue influence and had forged the document. The High Court ruled that it was satisfied with the authenticity of the relationship between the deceased and his de facto partner and that the document expressed the deceased’s intentions. The High Courtdeclared the will to be valid.

If you don’t have will, or have one but would like to review it, please contact one of our Estates & Trusts team or call us on 03 441 2743.

This case note and advice was prepared by Molly Beauchamp, a Registered Legal Executive, who can be contacted on molly@toddandwalker.com.