Will Drafting – Our Top 5 Tips

If a Will is technically valid, the mere circumstances in which it is prepared makes the Will more vulnerable to challenge. The rule known as the “golden rule” is a measure of what might be considered best practice for lawyers in the preparation and execution of a Will. While the “golden rule” is not a rigid rule of law, it has been repeatedly emphasised by the Courts as a desirable approach for lawyers to take. The substance of the golden rule is that when a solicitor is instructed to prepare a Will for an elderly Will-maker, or for one who has been seriously ill or is making a significant change from a previous Will or conventional norms, the lawyer should arrange for a medical practitioner to prepare a medical certificate confirming whether they have the capacity and understanding needed to make a Will. The capacity certificate should be kept on file. A lawyer should also ensure they take clear file notes recording the Will-maker’s intentions and the explanation for any significant changes to the Will. Compliance with the “golden rule” does not make a Will invalid. Its purpose, as has been repeatedly emphasised by the Courts, is to assist in the avoidance or minimisation of disputes. This decision highlights the importance of clear file notes recording the Will-maker’s wishes and the need for a contemporaneous assessment of testamentary capacity. While capacity is not a determinative factor in the assessment of undue influence, the lack of acknowledgement or consideration of this issue will result in criticism from the Court. Where adequate records are not kept, the determination of a later Will challenge with respect to capacity and undue influence can be compromised. In particular, the Court may find that there is an information vacuum such that it is not possible to determine capacity or that the transaction was the result of the free exercise of an independent will of the Will-maker. Accordingly, adverse inferences may be drawn in relation to any significant change made by the Will-maker and the basis for said change. This was highlighted in a recent Court of Appeal case Gorringe v Pointon [2023] NZCA 42. This appeal concerned allegations of undue influence in relation to two Wills made by the deceased. In particular, the Court criticised the lack of adequate reasoning and evidence provided by the firm who prepared and executed these Wills. The legal executive who prepared and executed the Wills was significantly criticised for failing to follow the “golden rule”. The Court observed that: The lack of consideration given to capacity, given the Will-makers advanced age of 97 years, was surprising and remiss. The apparent lack or adequate oversight or supervision from a qualified lawyer was regrettable. The interactions with the Will-maker were notably slim as evidenced by time recording. There was insufficient probing of the Will-maker’s intentions and scant file noting of the instructions and the execution process. When cross-examined during hearing, Ms Hopkins sought to extrapolate from the circumstances to proffer an opinion on why the Will-maker changed her Will. However, there was no note of this information in the evidence which undermined its credibility. In this case, the failure to comply with the \"golden rule” greatly increased the difficulties to which this dispute had given rise and aggravated the depths of mistrust the deceased’s family had. Overall, preparing a Will can be difficult and constrained by the client’s expectation that any instruction should be dealt with efficiently and at low cost. However, it is important that careful consideration is given to all potential beneficiaries and ensuring that no-one attempts to unduly influence the views of the Will-maker. If these points are addressed, along with any issue of capacity, the Will should stand up to scrutiny in the event of a dispute. Talk to our Estate Planning Team about Wills.

Ideally, a Will is prepared with a lawyer after careful consideration. Someone facing imminent death or decline may want to urgently prepare a new Will or update their current Will. These Wills are often referred to as deathbed Wills, last minute Wills or bedside Wills. These Wills are valid if executed properly. Technical RequirementsFor a Will to be valid it must meet the requirements in s11 of the Wills Act 2007 (“the Act”): The Will must be in writing; The Will-maker must sign the Will (or direct another person to sign on their behalf in their presence) in the presence of two independent adult witnesses; The witnesses must then sign the Will confirming they were present when the Will-maker signed the Will. The Will-maker must have also intended to make a Will. It is relatively common for last minute Will-makers to use family members to witness their Will, often because they are immediately available at the time. However, this can invalidate the Will or a gift within the Will if a witness is a beneficiary or the partner of a beneficiary. If a Will does not meet the validity requirements, the Court can declare a Will valid under s14 of the Act. However, this can be an expensive and time consuming process, particularly if there is a dispute amongst beneficiaries. Grounds for ChallengeIf the Will is technically valid, the mere circumstances in which it is prepared makes the Will more vulnerable to challenge. This includes if the terms of the Will differ considerably from the terms of a previous Will or, where there is no previous Will, from the laws of intestacy. The more significant the changes from a previous Will or conventional norms, then the greater likelihood that consideration must be given to the issue of capacity or undue influence. For example, leaving an estate to an acquaintance or neighbour rather than the Will-maker’s children would be considered a significant change. Challenges on the Basis of Incapacity A Will-maker must have testamentary capacity at the time of making the Will. Illness and strong medications can impact a person\'s ability to understand the nature and effect of their Will. If there are any doubts as to capacity, this makes the Will vulnerable to challenge on the basis of incapacity. The test for capacity was established in Banks v Goodfellow. At the time of signing the Will, the Will maker must: Understand they are making a Will and the effect of doing so; Understand the extent of their property being dealt with under the Will; and Appreciate moral claims which they ought to give effect to. If a person is making a last minute Will, a doctor’s certificate confirming the Will-maker’s capacity and a lawyer’s file note will minimise the risk of a challenge. Challenges on the Basis of Undue InfluenceWhere a Will makes a drastic departure from previous Wills or the rules of intestacy prior to death, questions of undue influence arise. This refers to a situation where someone has coerced or applied pressure to get a Will-maker to sign a Will. Undue influence affects whether a Will is valid or not. A person alleging undue influence must establish that the alleged influence led to the Will and that the terms of the Will were not the result of the Will-maker’s own free judgment. Preparing your WillIdeally, you should prepare your Will when you are fit and healthy. If you or your loved one are making a last minute Will, we strongly recommend engaging a lawyer to ensure the Will is valid and practical. This will provide certainty for you and your loved ones.

It is important to have Enduring Powers of Attorney (“EPOAs”) in place so that if an unexpected medical event happens the right people can look after you. If you lose your mental capacity and do not have EPOAs in place, it can be a costly, time-consuming and stressful process for your loved ones to legally have the right to look after you. The Protection of Personal and Property Rights Act 1988 (“PPPR Act”) provides what happens when a person loses their capacity to manage their personal and property affairs (both when they have EPOAs in place and when they don’t). EPOAEPOAs are legal documents that set out who can take care of your personal or property matters if you are unable to (for example, if you have a stroke, are in a coma or have a cognitive disorder). The person you appoint to look after you is called your “attorney”. There are two kinds of EPOA; property and personal care and welfare. To be valid, the Enduring Power of Attorney must be advised on by a lawyer or registered legal executive while you have medical capacity. PropertyThe Property EPOA gives your attorney power to make decisions in relation to your money and property, such as the sale of a home or payment of your bills. You can choose whether your property attorney can act immediately (while you have capacity) or only if you lose capacity. The Property EPOA (or PPPR order – more below), can appoint one or more attorneys or a trustee corporation. You can also require your attorneys consult with or provide information to certain people. Personal care and welfareThe Personal Care and Welfare EPOA gives your attorney the power to make decisions relating to your health and welfare, such as choosing a rest home, your level of care or medical treatment. The Personal Care and Welfare EPOA can only come into effect if a doctor certifies you have lost capacity and are unable to make your own decisions. The Personal Care and Welfare EPOA (or PPPR order) can only appoint one individual at a time to make decisions on your behalf. However, you can appoint successor attorneys and/or require that the first attorney consult with other people when making a decision. PPPR Act ordersIf EPOA are not in place when someone loses capacity, an application must be made to the Family Court to appoint someone to make decisions on your behalf. These documents can also be organised through a lawyer, but this process takes place once you have lost capacity. You therefore have less control over who is appointed. Whilst every effort is made to appoint a suitable person, it may not be exactly who you would have intended to appoint given it is not a decision in your control any longer. Why should I enact EPOA?Arranging for someone to be able to make decisions on your behalf by drafting EPOAs is a cheaper and more simple process where you are in complete control over who is appointed and what activities the appointed person can complete on your behalf, such as making gifts to family members or charity. If you lose capacity before you have EPOA in place, it is likely that someone will need to be appointed as your property manager and welfare guardian. This is so that they can enter contracts on your behalf, such as for you to be cared for in a rest home or to sell your property to help meet your care expenses and make decisions about your medical care when you are not in a position to do so yourself. Rest homes will not accept you into care if no EPOAs or PPPR Act orders are in place. PPPR Act orders processThe process for applying to be a property manager or welfare guardian includes a medical assessment being conducted, the drafting of applications, affidavits and consent documents, seeking consent from interested parties, filing all documents in court, service of documents on interested parties, a lawyer for subject person being appointed and assessing the subject person, and court approval of the person to be appointed. If the appointed person is disputed, there may also need to be a court hearing. Further, once someone has been appointed to be your property manager and welfare guardian, that person must file a statement of assets and liabilities with the Court each year, and the orders need to be reviewed by the court – initially every three years, but the court may then decide that every five years is acceptable. A lawyer can assist the appointed person with this process if required, however this is likely to be at a cost to you personally. A record of income and outgoings must be kept, with any money spent for the benefit of the protected person only – not the appointed person. Public Trust conducts reviews of this. PPPR Act orders cease on death, bankruptcy and if the protected person regains capacity – although in most cases this is not likely to occur if the incapacity is due to dementia or permanent disability. At a time when you have recently lost capacity and your family needs to ensure that you are cared for appropriately, it is far simpler if you have signed EPOA which can then come into effect immediately. If you have not entered into EPOA then your family can be put in the position of having to go through the Family Court process to obtain welfare guardian and property manager orders as described above. This process takes time and effort which both increase cost. This can also mean there is a hold up in important decisions being able to be made, as it generally takes several months to work through the Court process before orders for appointment as welfare guardian/property manager take effect. It is significantly quicker and less expensive to enter into EPOAs when you have capacity, than for your family members to have to seek PPPR orders once capacity has been lost. ConclusionJust like Wills, EPOAs are important documents to draft whilst you have capacity. Having documents like these in place will save your family time, cost and stress if you lose capacity and they need to get the Family Court involved to look after your personal care and welfare, and property matters. It will ensure that the people you trust and want to take care of these roles are in position to act immediately should they need to. If you have any queries, would like to prepare EPOAs or need to apply for PPPR Act orders, please reach out to us at Holland Beckett Law.