Morris Legal Partner Sally Morris and Senior Solicitor Aria Newfield discuss how issues with wills can be resolved through High Court applications to validate or correct wills. They gave a seminar presentation on this topic for Legalwise Seminars.
A will-maker usually expects that their estate will be distributed in accordance with their wishes in the event of their death. However, the matter is not always so straightforward. Problems can arise if a will fails to comply with formal requirements, a drafting error has been made, or a will fails to give effect to the will-maker’s instructions. In such cases, the executor may need to apply to the High Court to validate or correct the will.
Applications to validate a will
Prior to the enactment of the Wills Act 2007 (2007 Act), documents that were intended to be wills but failed to meet the formal requirements could not be declared valid wills. Parliament recognised that the strict requirements of the legislation in force at that time, the Wills Act 1837, were thwarting the intentions of will-makers and introduced changes with the 2007 Act.
Section 14 of the 2007 Act empowers the High Court to declare valid a document that does not meet the formal requirements for a will, provided the document “appears to be a will”. The court has readily found that documents that have the physical form of a will, but include a technical error or mistake, “appear to be a will”. This has included unsigned wills, electronically stored draft wills, suicide notes and letters from the deceased.
If the document “appears to be a will”, the court will consider whether it expresses the deceased person’s testamentary intentions. If so, the court will generally make an order declaring the document a valid will.
Whether a document expresses the deceased’s testamentary intentions is a question of fact. The test is not an objective one and it is specific to the particular deceased person. The court may consider all relevant circumstances when determining if a document should be declared a valid will, including the document itself, evidence of the signing and witnessing of the document, evidence of the deceased’s testamentary intentions and statements made by the deceased.
Applications to correct a will
If a will meets the necessary formal requirements but does not carry out the will-maker’s intentions, s 31 of the 2007 Act may assist. This section allows the High Court to correct a will that contains a clerical error or fails give effect to the will-maker’s instructions.
The expression “clerical error” is not defined in the Act and there is some uncertainty as to its scope. Case law suggests that the definition is relatively broad and covers more than mistakes in names, numbers and identities. For example, the court has found and corrected clerical errors in the following cases:
- A couple made mutual wills leaving their estates to each other, but the deceased’s will incorrectly left her estate to herself.
- A will was drafted for the deceased using her husband’s mirror will as a template but the drafter did not change “him” to “her” and “husband” to “wife”.
A will may also be corrected where the will-maker’s instructions have not been implemented. The will-maker’s instructions will be ascertained by evidence, often in the form of a file note or other contemporaneous document in which the instructions or intentions were recorded.
In Bowness v Bowness [2015] NZHC 468, a lawyer’s file note made clear that the deceased’s gift to his “children” was to include his stepdaughter but the will failed to refer to her. The High Court corrected the will to explicitly include the deceased’s stepdaughter.
In Re Estate of Gallais [2017] NZHC 1405, the will was drafted such that the deceased left all property and chattels owned by the deceased’s company to his partner. The Court corrected the provisions of the deceased’s will to provide that all the shares in the company were left to the deceased’s partner instead. The Court was comfortable that the deceased’s instructions were clear and the will required correction to give effect to them.
Conclusion
Based on the high number of validation and correction applications made to the High Court each year, the issues discussed above are very common. The growing body of case law suggests that the High Court will seek to ensure, as far as possible, that a will-maker’s clear intentions are upheld. To this end, s 14 has been successful in restoring the balance between the formalities required by statute for a valid will and giving effect to the clear intentions of the deceased. Section 31 provides further protection of the deceased’s intentions by allowing for the correction of errors in wills. It is important to bear in mind that the section does not provide the court a general power to amend wills and some mistakes will not fall within the ambit of the section.
Applications to validate or correct wills provide a useful safety net. However, it is clearly preferable to avoid the need for such applications in the first place, as they cause unnecessary cost to the estate. Cases involving validation and correction applications serve as a reminder to practitioners of the importance of careful drafting and comprehensive file notes.
Please contact the authors if you have any further questions about this article.
Sally Morris is the founding partner of Morris Legal. Sally is admitted as a barrister and solicitor in New Zealand, New South Wales and New York, and has a Master of Laws degree from Columbia University. She has an established reputation in the field of relationship property, trust and estate disputes, appearing regularly in the Family Court, High Court and Court of Appeal on behalf of trustees, beneficiaries, executors, charities and private clients. Contact Sally at sally.morris@morrislegal.co.nz or connect via LinkedIn 
.
Aria Newfield is a senior solicitor at Morris Legal. Prior to joining Morris Legal, Aria was a solicitor in the general litigation team at Russell McVeagh, one of New Zealand’s leading commercial law firms. Aria provides expert legal and strategic advice to private clients and charities on a diverse range of trust, estate and family law issues. Aria received her LLB and BA from the University of Auckland. Aria is a skilled advocate and has competed at a national and international level in debating. Contact Aria at aria.newfield@morrislegal.co.nz or connect via LinkedIn .
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