We specialise in complex wills. If you have some documents which you think may have been intended to be a Will, please get in touch with our team here.

Is a Will written on a restaurant napkin good enough?

Validating a Will under section 14 of the Wills Act

We all know that a Will is a formal document. It is often prepared by a lawyer. But what happens when someone scribbles a few thoughts down on paper? Perhaps they write their own Will and sign it. Is close enough good enough?

Traditionally, there were very strict requirements for making a Will. The Will had to be in writing. It had to be signed. The signature had to be witnessed by two people who were present in the room at the time the Will was signed.

This all changed in New Zealand in 2007 when we passed a new Wills Act.

Section 14 of the Wills Act allows the court to validate a document which does not comply with the legal requirements, but otherwise “appears to be a Will”.

So, it is possible that some scribbles on a napkin in a restaurant could be accepted by the Court as a valid Will.

The starting point is that it must be a document. The Wills Act defines a document as “any material on which there is writing”. Obviously, a handwritten document easily meets the criteria. But so would a will written on an eggshell. So would a document prepared on a computer. Text messages may even suffice.

The next requirement is that it must “appear to be a Will”. Words like “this is my Will” or “I want my property to go to Fred when I die” will usually do the trick.

The court will also accept a number of documents which together can be read as explaining the intention of the person who died. So some texts backwards and forwards with your wife might be enough to get it over the line.

Examples of types of documents that have been accepted and validated as Wills include:

• A man used a home-made will kit, but forgot to sign it.
• A mother made notes in her diary.
• A man diagnosed with cancer asked his lawyer to prepare a Will. The man read the Will and told his daughter that it was what he wanted. However, he never got around to signing it.
• A person wrote a ten page letter before committing suicide.

These types of applications are more common that you think. In 2014 one judge tallied up that there had been 80 applications that year, and only two of them had been declined.

The process of applying to validate a Will is quite straightforward. A lawyer will will prepare the required evidence. This is in the form of an affidavit (a written statement) from family members and friends. The application is then filed with the High Court. More often than not the application is dealt with by the Judge simply reading the papers, without the need for a hearing.

Gerard Molloy, of our office, has considerable experience in dealing with applications under the Wills Act. If you have some documents which you think may have been intended to be a Will, he would be happy to review them and give you an opinion as to the prospects of an application succeeding.

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