This is the third of our articles on bequests contributed by Juliet Moses. Juliet is a partner at the Auckland-based boutique law firm Taylor Grant Tesiram. The firm specialises in trusts, estates, succession planning, relationship property, and related areas.
Challenges can be made to the validity of a will – for example, whether the formal will-making requirements were met, or whether the will-maker had testamentary capacity at the time of making the will.
Capacity, undue influence and want of knowledge and approval
In order to establish capacity, when in issue, those seeking probate must demonstrate the maker of the will had sufficient understanding of three things when he or she signed the will:
(a) that he or she was making a will and the effect of doing so;
(b) the extent of the property being disposed of; and
(c) the moral claims to which he or she ought to give effect when making the will.
If a will-maker’s capacity is in doubt (for example, because of age, or because of a mental illness) it will be prudent to obtain the opinion of a medical practitioner. Medical practitioners should be familiar with the requirements for assessment.
The question of knowledge and approval of the contents of the will arises independently of testamentary capacity. Where the circumstances under which a will is prepared raise grounds for suspicion that it does not express the will-maker’s mind, there is a burden on the person seeking probate to prove affirmatively that the testator had knowledge and approval of the contents of the will.
Undue influence can also invalidate a will. In that case the judgment of the will-maker is impaired due to the improper (although not necessarily intentional) use by a person of his or her position or relationship for his, her or another person’s benefit.
To be valid a will must be in writing and signed by the will-maker or by some other person in his or her presence and by his or her direction. The will-maker’s signature must be made or acknowledged by the will-maker in the presence of two or more witnesses present at the same time. Any adult person can be a witness, but there are some people who should not be witnesses. None of the following people should be a witness:
(a) any person who is a beneficiary or potential beneficiary under the will;
(b) the husband, wife, civil union partner or de facto partner of a beneficiary or potential beneficiary under the will;
(c) any person who is an executor of the will, unless the executor is not going to charge any fees for carrying out the role of the executor;
(d) the husband, wife, civil union partner or de facto partner of an executor, unless the executor is not going to charge any fees for carrying out the role of the executor.
Witnesses do not need to read the will. The will-maker does not need to explain to them what the will contains.
The will-maker must be together with both witnesses in the same room and each must be able to see the other sign the will. No-one must leave until the will has been signed by the will-maker and the two witnesses. Other people can be present.
You should not alter the will before or after it has been signed; pin, staple or clip anything to the will; or undo any binding or other means by which the pages of the will are held together.
The High Court may however declare that a will is valid despite such formalities not being complied with if it is satisfied the document expresses the will-maker’s testamentary intentions.
Often the administration of estates with overseas assets contributes to the delay in the completion of the administration. The administrator will be required to apply for special orders in the High Court that can be costly, time-consuming and complicated. As a result, it is often desirable for a person with property in more than one jurisdiction to have more than one will, each disposing of property in the jurisdiction in which it is executed. This is especially so where a person owns real property in more than one jurisdiction.