The Wills Act after 10 years and the evolution of the courts dispensing power provided under the Act.

Transcription

1 The Wills Act after 10 years and the evolution of the courts dispensing power provided under the Act. A brief look back at the provisions introduced by this Act, some notable decisions and a look at the practicalities involved with making an application for an order under the Act. It is breathtaking when you consider that in 3 months we will have been living with the Wills Act 2007 for 11 years. The Wills Act 2007 came into force on 1 November 2007 and applied to the wills of persons who died on or after that date, regardless of the date of the will. However, some of the provisions of the Act did not apply to wills made before that date and before other specified dates (section 40). The Act restated the existing law governing wills, which resided in several statutes dating back to 1837, in a single statute in plain, modern language that is clear and accessible. For example the words testator and testatrix are replaced with the word will-maker and codicil with the term documents associated with the will. This term caused considerable confusion amongst the ranks, to such an extent that I pressed for a return to the generic name, and the term was subsequently changed in the forms prescribed under the High Court Rules so that the term codicil was invited to be used again. It also implemented certain reforms to enhance and modernise the substantive law governing wills and remove certain anomalies. Overview 2.1 Some parts of the Act liberalise the law and those changes were expected to produce more litigation, based on the experience in Australia where courts are able to dispense with the formal requirements for a will in certain circumstances. This so called judicial dispensing power was replicated in the Act, for example in section 14, and represented a

2 significant change to the previous provisions. This section allowed the High Court to declare a will valid even though it is not properly signed or witnessed if the Court is satisfied that the will expresses the will-maker s intentions. 2.2 The Act recognises civil unions and de facto relationships which the previous legislation did not do. 2.3 Will is defined section 8. No substantial change. 2.4 Who may make a will - Section 9 provides that the following persons may make a will: (1) a person who is 18 years or older; (2) a person who is under 18 years who is or has been married, in a civil union or in a de facto relationship; (3) a person under 18, not in this category can apply to the Family Court for approval to make a will. Therefore, there is no longer a minimum age at which a person can make a will. (4) a person under 18 who is a military or seagoing person or is complying with an order to train for or join the Armed Forces or is about to comply with an order to join a ship as a seafarer. Section 10 provides for persons under 18 to make a will if he or she and another person have agreed to marry or enter a civil union with each other and the will expresses this intention or if the will does not state this intention, the circumstances existing when it was made show clearly that it was made in contemplation of the marriage or civil union. The will is only effective if the marriage or civil union occurs. How a will has to be signed 2.4 The Act contains significant changes to the way a will has to be signed. The requirement for two witnesses to be present when the will-maker signed it remained as before. However, the document no longer has to be signed at the foot or end of it. It simply has to be signed somewhere on the document section 11 states The will-maker must sign the

3 document. Section 9 of the 1837 Act was specific that a will was to be signed at the foot or end thereof by the testator. Witness a beneficiary 2.5 Section 13 provides a further significant change - A gift in a will to a witness or to a witnesse s spouse, civil union partner or de facto partner will no longer be void as long as either: (a) all the other beneficiaries consent in writing to the gift being made, or (b) the High Court is satisfied that the will-maker made the gift voluntarily. Declaring will valid 2.6 Section 14 provides the most substantial change to the previous legislation. This section allows the High Court to declare a will valid even though it is not properly signed or witnessed if the court is satisfied that the will expresses the will-maker s testamentary intentions. This provision is copied from similar provisions in most States in Australia. Changes made to a will after execution 2.7 Section 15 states the means by which changes and alterations may be made to a valid will. Basically this has to be done in the same manner as a will is executed or if the words are totally obliterated. However, the section provides that application may be made to the Court for the change to be declared valid under section 14. Revocation 2.8 Section 16 states the means by which a will may be revoked. Again, the provisions in the 1837 Act are included but with two additions. The first, that the will-maker does anything else in relation to the will that satisfies the Court that the will-maker intended to revoke the will or the revocation is declared valid under section 14. Revival section 17 deals with how a will that has been revoked may be revived. Effect on will of will-maker marrying or entering into civil union- 2.9 A will is revoked if the will-maker marries or enters into a civil union. However, this provision is overridden if it is stated in the will that it is made in contemplation of a particular marriage or civil union. If however, the will does not state that it is made in contemplation of this intended

4 action, the will can still be valid if circumstances at the time the will was made show clearly that it was made in contemplation of a particular marriage or civil union and that marriage or civil union takes place section 18. Effect on will of will-maker s marriage or civil union ending section The provisions in a will appointing the will-maker s spouse or civil union partner as executor or trustee are rendered void if the will-maker and his/her spouse are parties to a separation order or the marriage has been dissolved. Previously only a dissolution of the marriage rendered these provisions void and a separation order was effective only in the case of an intestacy. Correcting a will 2.11 The High Court now has power to correct a will that contains a clerical error or does not give effect to the will-maker s intentions section 31. Example in re Armstrong where a codicil referred to a will of an earlier date and to a paragraph that appeared in that will. Unintended changes The new Act contained a number of provisions which resulted in unintended changes that caused major problems - Will-maker acknowledging his or her own prior signature The 1837 Act permitted this type of acknowledgement, but the new Act did not. Section 11(3)(b) provided that will-makers could only acknowledge another person s signature made at their direction and in their presence. Method of attestation the Wills Act 1837 did not require a particular form of attestation, however, s 11(4)(b) of the new Act stipulated that each witness state on the document, in the will-maker s presence, that they were present when the will-maker signed the will or acknowledged someone else s signature. The requirement for a formal attestation clause created serious problems, because it had the effect of invalidating wills made prior to the Act. In the absence of a clause worded as stipulated by s 11(4)(b), the will was invalid. Section 14 was able to be used to validate wills made after the Act but that was not an option

5 for wills executed before 1 November 2007 because of the transitional provisions in force at the time. These errors were eventually remedied by the Wills Amendment act 2012 which came in to force 25 February A will is no longer invalidated by the absence of a formal attestation clause or the acknowledgement by the willmaker of his or her prior signature. With the repeal of the transitional provisions pertaining to s 14 in the 2012 amendment, the power can now be used to validate documents as a will regardless of the date when it was made, provided the deceased died on or after 1 November EVOLUTION OF THE EXERCISE OF THE DISPENSING POWERS PROVIDED UNDER SECTIONS 14, 18 & 31 OF THE WILLS ACT When the Act came in to force there were no accompanying rules to dictate how such applications were to be made, and it was necessary for precedents and practice requirements to be established. I was of the view that the provisions would not be used very often and was surprised to find that I was being inundated with inquiries from practitioners wanting to know how to go about making an application for one of the orders. I was fortunate to be able to consult with Justice MacKenzie who had an interest in this area of work and who agreed to deal with all the applications that were filed in Wellington to establish practice requirements and the principles of law to be applied. The following basic procedures were determined in regard to preparation of the application and supporting documents-

6 - If all interested persons are in agreement with the order being made the application could be commenced by way of an originating application without notice; - All persons affected by the making of the order had to be accounted for or cleared off and consents produced. To determine who was affected it was necessary to establish if the deceased had an earlier will or whether they would be intestate if the order was not made. If the later then you will appreciate that considerable inquiries were necessary. - If there was any opposition to the order being made the application had to be on notice. The first order declaring a document to be a valid will was made in August 2009 in re Estate of Hickford. In this case a solicitor had prepared a will on instructions from the deceased, posted the document to him requesting that he contact her with any changes he required and make a time to come back to see her to execute the document. The deceased received the document, discussed it with her family but failed to return to the solicitor to have it executed before he died. This scenario has been a common theme with many of the applications for validation that have been filed over the years, many of which could have been averted if the solicitor had been more diligent in following up with their client. The delayed start was probably due to the fact that the validation power could not then be applied to wills made before 1 November There has certainly been a steady increase in the number of applications for validation orders since August In 2016 alone 30 applications were dealt with, all of which were granted. Until 2014 proceedings for orders were commenced by way of an application without notice made under Part 27 of the High Court Rules relying on rule 27.4.

7 At that point in time Justice Mackenzie, who for some time, had been considering this aspect decided that Part 27 did not provide the necessary jurisdictional foundation for such applications, and in deciding an application for validation in Re Badraun stated I first address the form of the proceeding. The application has been filed as an interlocutory application without notice. There is no prescribed procedure for the making of such applications. I consider that the appropriate procedure is an originating application under pt 19 of the High Court Rules. That is an expedient procedure for cases where there is no opposing party. I give permission under r 19.5(1) for the proceeding to be commenced by originating application. I treat the application filed as the originating application. This finding lead to the High Court Amendment Rules that came into force on 1 January 2015 that amended rule 19.2 by inserting after rule 19.2(x): (xa) section 14 or 31 of the Wills Act The effect of this change was that applications for orders under these provisions in the Act must be brought by way of an originating application under Part 19 of the High Court Rules. There is nothing to prevent such an application being made on a without notice basis. To facilitate this the originating application must seek an additional order that leave be granted for the application to be made without notice to any other person and that the memorandum filed in support explain why it is appropriate for the application to be on a without notice basis. The form of the application must comply with the provisions of Part 19 of the Rules. Memorandum of counsel The Judges had earlier directed that in these types of application a brief memorandum is required to be included from counsel for the applicant, setting out why it is said the requirements of s 14 are met and why such an order is appropriate in light of the authorities.

8 Form of application Precedent form of application for an order declaring a document to be a valid will under the provisions of the Wills Act 2007 IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY I TE KOTI MATUA O AOTEAROA WELLINGTON TE WHANGANUI-Ā-TARA IN THE MATTER OF Section 14 of the Wills Act 2007 and CIV IN THE MATTER OF an application by [full name, place of residence and occupation] for an order that a document be declared a valid will of [full name, place of residence and occupation] Deceased ORIGINATING APPLICATION WITHOUT NOTICE FOR ORDER DECLARING DOCUMENT TO BE A VALID WILL [Firm name] [PO Box and DX numbers] [Place] [Telephone and fax numbers, address] [Name of person handling the matter] IN THE HIGH COURT OF NEW ZEALAND

9 WELLINGTON REGISTRY I TE KOTI MATUA O AOTEAROA WELLINGTON TE WHANGANUI-Ā-TARA CIV IN THE MATTER of Section 14 of the Wills Act 2007 and IN THE MATTER of an application by [full name, place of residence and occupation] for an order that a document be declared a valid will of [full name, place of residence and occupation] Deceased ORIGINATING APPLICATION WITHOUT NOTICE FOR ORDER DECLARING DOCUMENT TO BE A VALID WILL To the Registrar of the High Court at [place] This document notifies you that 1. The applicant, [name place of residence, occupation], applies for an order/orders* granting leave for this application to be made without notice to any other person; 1.2 that the undated document [or]/ the document dated [date] a copy of which is marked A and attached to the affidavit of the applicant [or] attached to the affidavit of [name] filed in support of this application be declared valid as the last Will of the deceased. 2. The grounds on which this order/each order is sought are as follows: 2.1 the applicant is the executor named in the document [or state the basis for the applicant s involvement];

10 2.2 the document appears to be a will; 2.3 the document came into existence in [or out of] New Zealand; 2.4 the document has not been executed in the manner prescribed in s 11(4) of the Wills Act 2007 because [state the reason for noncompliance with the Act] it has not been signed by two witnesses; 2.5 the document expresses the deceased s testamentary intentions; 3 The application is made in reliance on s 14 of the Wills Act 2007 and rr 19.2(xa) and following of the High Court Rules. The court is respectfully referred to the memorandum of counsel filed in support of this application. [If any decisions of the court are relied on refer to the cases in this paragraph as well. Copies of these should be attached to the memorandum]. 4 The application is made without notice to any other party on the following grounds: (a) requiring the applicant to proceed on notice would cause undue delay or prejudice to the applicant; (b) the application affects only the applicant; (c) The consent of all persons who may potentially be affected by the granting of the order have been given notice of or have consented to this application; (d) The application relates to a routine matter; (e) The interests of justice require the application to be determined without serving notice of the application. 5 I certify that

11 (a) the grounds set out in paragraph (4) on which the application relies are made out; and (b) all reasonable inquiries and all reasonable steps have been made or taken to ensure that the application contains all information that is relevant to the application, including any opposition or defence that might be relied on by any other party, or any facts that would support the position of any other party. Date: [Print name] Solicitor for applicant This application is filed by: [solicitor name] (Solicitor for the applicant) Of [firm name] [PO Box and DX numbers] [Place]

12 Points to note - intituling follows that prescribed for an originating application under Part 19. The precedent is varied slightly to include the name of the deceased for ease of handling in the registry which processes applications by names of the deceased rather than the names of applicants; - The application may be filed in any registry. They do not have to be filed in the Wellington registry. If not filed in Wellington it is suggested that they be filed in the court nearest to where the deceased resided. Keep in mind however, that the ensuing application for probate must be filed in the Wellington court. - paragraph 1 seeks the two orders; - paragraph 1.1 refers to a copy of the actual document being exhibited to the affidavit of the applicant and NOT the document itself which should not be filed with the application; [ Document is defined in the Act as any material on which there is writing What is material is not defined in the Act. The word has been construed widely in the context of wills to include paper, fabric, stone, wood, metal, plastic, glass and even an eggshell. It could also take the form of a photograph, a text message on a mobile phone, an electronically stored document or writing recorded on a CD, DVD, film or video] ; there has been a recent decision in re Caird where the document concerned consisted of cryptic notes written on a piece paper by a friend of the deceased s testamentary intentions some weeks before he died which the solicitor acting turned into a draft will as being an expansion of the notes so as to reflect the testator s wishes. The Judge

13 validated the document with the handwritten notes together with the draft will prepared by the solicitor as the last will of the deceased. - paragraph 2 lists the grounds for the making of the order. These are to be found in section 14 of the Wills Act and will rarely vary; - paragraph 3 refers to the memorandum filed in support and any decisions of the court that are also relied on as precedent. Attach a copy of these to your memorandum. - In the earlier years the determination of every application was conveyed in a written decision of the Judge. In Wellington now the Judges have decided that this is no longer necessary now that the practices are well established, and they are simply endorsed with the grant and signed by the Judge. Order to be sealed Orders made on "section 14 applications" are required to be sealed. You should obtain two duplicate copies of the sealed order; one for the affidavit in support of the application for probate and one for the probate document.

14 Precedent form of order for Wills Act Applications IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY I TE KOTI MATUA O AOTEAROA WELLINGTON TE WHANGANUI-Ā-TARA CIV [YEAR]- -.. IN THE MATTER of Section 14 of the Wills Act 2007 and IN THE MATTER of an application by [full name, place of residence and occupation] for an order that a document be declared a valid will of [full name, place of residence and occupation] deceased ORDER DECLARING DOCUMENT TO BE A VALID WILL ON APPLICATION WITHOUT NOTICE Firm Name PO Box and DX Numbers Place Telephone and Fax Numbers, Address [Name of person handling the matter]

15 IN THE HIGH COURT OF NEW ZEALAND [NAME] REGISTRY CIV [YEAR]- - IN THE MATTER of Section 14 of the Wills Act 2007 and IN THE MATTER of an application by [full name, place of residence and occupation] for an order that a document be declared a valid will of the deceased [full name, place of residence and occupation of the deceased] To [name of applicant] 1 The originating application made by [name] on [date] was determined by the Honorable Justice [name] on [date]. 2 The determination was made on the papers without a hearing. 3 The following order was/orders were* made: that the undated document [or]/ the document dated [date], a copy of which is exhibited to the affidavit of [name] filed in support of the application be and is hereby declared to be a valid will of the deceased. A copy of that document is attached. Date: Deputy Registrar *Select one. Points to note - intituling on the cover sheet and page 1 of the document to be the same as that in the application ; - attach a clean copy of the document to the order and to the copies to be sealed; - you will require at least two sealed duplicate copies.

16 Correcting a will Section 31 of the Act empowers the High Court to correct a will that contains a clerical error or does not give effect to the will-maker s intentions. This section was initially used extensively where appointment of executors was void for uncertainty e.g. two partners in a firm. This problem has now been overcome by the decision in re Cornelius. The documentation required for this type of order are the same as those for a s 14 order - application without notice; - affidavit in support; - memorandum of counsel; - persons affected by the making of the order must be cleared off; - order required to be sealed. Points to note - Application can be filed in any court unless probate has already been granted of the document, in which case it must be filed in Wellington; - Application can be made before or after probate has been granted but should not be made at the same time as the application for probate; - The documents prepared for a subsequent grant of probate need to be refined to include reference to the fact that the will has been corrected. Examples of situations where correction orders have been made: in re Armstrong codicil quoting date of an earlier will and refers to a paragraph in that earlier will. In re Mansfield Appointment of executors void for uncertainty. Two partners in firm. In re Trehey two partners in the firm. In re Brown clause in will referring to gift recorded in the clause but no such gift is made. In re Valder incorrect reference in codicil to clause in will. Intention was to replace executors but clause containing bequests and devises was stated in the codicil. In re Benstead two partners of firm appointed executors. In re Craze codicil recites date of earlier will and refers to incorrect paragraph in the will to be altered. In re Smart will-maker leaves entire estate to herself, meant to be to her husband.

17 In re Smith codicil providing for substituted executors corrected where provision that substitution was to apply only if spouse predeceased will-maker was omitted; In re McKeay correction of name of residuary beneficiary where wrong person was inserted in the will, by mistake. Application for grant of probate of will where the willmaker had subsequently married or entered into a civil union- As stated, section 18 of the Act provides that a will may not necessarily be revoked on the marriage of the will-maker, even if it is not stated in the will that it is made in contemplation of marriage, if circumstances at the time the will was made show clearly that it was made in contemplation of a particular marriage or civil union and that marriage or civil union takes place. The process to invoke this provision differs from that required for validation or correction of a will where the court is required to make an order and a separate application is required to be filed to obtain an order from the Court. For this provision to be invoked, and if there is no opposition, only the application for grant of probate needs to be filed and the affidavit in support and the affidavit in support must contain the evidence to show clearly that it was made in contemplation of the marriage or civil union that the will-maker entered into after the will was made. Points to note - Proof of the marriage or civil union is required; - All parties affected by the decision must be cleared off in the same way as for validation and correcting orders; - If there is opposition to the will not being revoked then an application under Part 19 will need to be filed;

18 - No separate order is necessary, but it is the practice to refer in the probate document to the fact that the revocation provision was overridden. I am aware of only one defended application having been heard; In re Stirling where Heath J held that the circumstances did not support the view that it was made in contemplation of marriage and an intestacy resulted. I have dealt with a number of such applications and only on one occasion have I declined to grant the probate. The parties did not take me on review and I granted letters of administration on intestacy. Having obtained a validation or correction order, the next step is to apply for probate of the document that has been declared to be a valid will and the documents need to be refined to include reference to the fact that the document was invalid and that there has been an order made declaring it to be a valid will or correcting it. John Earles Specialist Techinical Advisor Registrar Wellington High Court DDI: Ext December 2017