Understanding the Legal Requirements for a Valid Will

Tuesday 12 March, 2024

A will is the most important way to convey what you want to happen to your assets upon death. If you do not have a will, it is important to prepare one, and if you are part way through preparing a will, it is even more important you finalise it. The case of Robinson v Beaman is an example of what can happen if you don’t finalise your will.

To create a valid will, the formal requirements of the Wills Act 2007 (the Act) must be adhered to. The Act requires a valid will to be in writing, signed and witnessed by two witnesses who are present together with the will-maker when the will is signed. In situations where these requirements are not met, the Act, under section 14, gives the High Court (Court) the ability to declare a document to be a valid will if the document:

• Appears to be a will,
• Does not comply with the formal requirements of the Act, and
• Came into existence in New Zealand or overseas.

To make an order declaring a document a valid will, the Court must be satisfied that the document expresses the will-maker’s wishes as to what should happen to their assets upon their death. These wishes are referred to as the will-maker's testamentary intentions. The document itself, evidence of signing, witnessing, and statements made by the deceased, will be considered by the Court.  

Decision in Robinson v Beaman

In the recent decision of Robinson v Beaman, the partner of the deceased, Ms. Robinson wanted an email and a draft document declared a valid will under the Act. The deceased, Mr. Beaman, had wanted to update his will due to a change in circumstances involving his new de facto partner, Ms. Robinson, and the children of the new relationship. On Mr. Beaman’s death, Ms. Robinson applied to validate an email sent in 2020 or a draft will made in 2019 as Mr. Beaman’s will. The application failed in the High Court and again in the Court of Appeal.

The Court of Appeal emphasized that the relevant section of the Act, section 14, has a remedial nature in instances where testamentary intentions are clear but not technically construed. However, where a document does not clearly reflect the deceased’s testamentary intentions, or if there are doubts as to whether testamentary intentions were settled, section 14 cannot apply.

In this case, both the 2020 email and the 2019 draft will did not meet the threshold for section 14 to apply as the will-maker had unsettled testamentary intentions. The conclusion that the will-maker had unsettled testamentary intentions was reached because:

• Inconsistencies and different testamentary intentions were found in the 2019 draft will and the 2020 email.
• Mr. Beaman had described the 2020 email as “a start” and was seeking his partner’s opinion on possible testamentary outcomes.
• Time had passed since the formation of the 2020 email and Mr. Beaman’s death. During that period, Mr. Beaman had not finalized his will and was looking to instruct a lawyer to create a new one.  

As a result, the Court was not satisfied that either document expressed the deceased’s testamentary intentions. Accordingly, as section 14 could not be applied, no valid will was declared.

Criteria for Section 14 to Apply

For section 14 of the Act to apply and a document declared a valid will, the document must be written, either by hand or electronically. It does not need to be signed and witnessed; however it is essential that the document reflects the will-maker’s testamentary intentions. Examples of factors which may prove clear testamentary intention are:

• Consistent content and testamentary plans between documents.
• No evidence of a change in the will-maker’s mind about the contents of the documents.
• Evidence that the will-maker was conscientiously putting their affairs in order.
• Evidence that the will-maker believed they had created a valid will.  

Overall, if a document created by the deceased clearly reflects testamentary intentions, and those intentions are certain then that document may be validated as a will under section 14 of the Act. Various factors may be used as evidence, and the outcome is dependent on the circumstances of each case.

To avoid any doubt regarding your testamentary intentions and whether you have a valid will, speak to one of our experts below about your will and asset planning requirements today. Our thanks to Niamh Hooper, (2023/2024 Summer Intern) for her contributions to this article.