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09 August 2023

Queen of Soul’s Last Will Found Under The Couch

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You may have read about the recent Aretha Franklin estate battle, and how a scribbly note found under couch cushions was deemed to be a valid will.

How does this apply in the context of wills in New Zealand?

The first and best way to ensure your estate is distributed in accordance with your decision is to have a valid will drafted in accordance with the requirements of section 11 of the Wills Act 2007 (this has strict rules about how a will is to be signed and witnessed). This also reduces the risk of disputes arising between surviving family members.

But as the unexpected nature of life would have it, things do not always go as planned, and sometimes people are unable to finalise or draft their will prior to their death. Even in such cases, there are some rare situations in which the courts will accept a document that is not necessarily in accordance with the requirements of section 11 of the Wills Act 2007, as a valid will, much like Aretha Franklin’s note.

Section 14 of the Wills Act 2007 grants the power to the High Court to declare a will valid where:

a)    there is a document that appears to be a will;

b)    it does not comply with section 11; and

c)    if it is satisfied that the document expresses the deceased person’s testamentary intentions.

In the recent High Court decision regarding the estate of Hillary Ann Clay, Ms Clay passed away before her final amended draft will could be signed. [1] The Court found that this unsigned draft was a valid will, having consideration to the three-limb test above. This was especially due to the fact that apart from minor changes to the will, the rest of the details had been confirmed by Ms Clay, in the presence of her lawyers.

There have also been less certain circumstances, under which section 14 has found a document to be a valid will. In the case of Caird v Caird, Mr Caird passed away with no will. [2] He had no partner or children and his immediate family consisted of his brothers, nephews and nieces.

The document in question for Mr Caird was a mere handwritten note recorded by his friend on the back of a letter from a bank. Amongst other things, the note outlined Mr Caird’s intention to distribute his estate to favour his nephews over his nieces. The note was not extensive in any way, and much less formal than that of Ms Clay’s amended and unsigned will and Mr Caird passed away before he could talk to his solicitors.

Regardless of this, the Court was satisfied that the note was a document which “had the appearance of a will and expresses [Mr Caird’s] testamentary intentions”. Accordingly Mr Caird’s estate was distributed in accordance with the note, rather than following the prescribed distribution under intestacy.

We note that the section 14 assessment is case-by-case, and every situation is determined based on its own merits. There is no guarantee under this section that a) your document will be found and even if it were found that b) the courts will uphold it. Therefore, we strongly urge you to please get in touch if you are wanting to make a will, to avoid the risk and uncertainty of your wishes not being known or carried out.

[1] Gebert v Clay [2023] NZHC 1726.

[2] [2018] NZHC 1605.


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