Last minute Wills

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.

If you feel like you haven’t been properly provided for by a close family member or friend, you are able to apply to the Court for this to be changed. This can be done in a number of ways, but the two main laws are the Family Protection Act 1955 (FPA) and the Law Reform (Testamentary Promises) Act 1949 (TPA). Who is eligible to make a claim? Under the FPA, spouses, civil union partners and de facto partners of the deceased are all eligible to claim. Children, grandchildren and step children who were being wholly or partly supported are also able to claim. Parents of the deceased are only able to claim in limited circumstances. Under the TPA, any person who has been promised provision under the will can make a claim. However, claims usually come from relations not provided for under the FPA, or close family friends. Is there a time limit on making a claim? Under both the FPA and the TPA, you have 12 months to lodge a claim. However, we recommend that you file a claim as soon as possible to make sure that all of the Estate assets are available. How can I claim under the FPA? The FPA gives specified family members the right to apply for provision out of a family member’s estate. The purpose is to ensure that family members receive their fair share of an estate and are adequately provided for by the deceased. This is because the FPA creates a moral duty, for example from a parent to a child. If you make a claim, the Court will consider whether adequate and proper provision has been made for your maintenance and support. This means the Court will consider factors such as the relationship between you and the deceased, the size of the estate, your financial need, and any ethical elements such as your right to feel a sense of belonging to the family.. A claimant in need (whether financial or otherwise) will have a stronger claim. How can I claim under the TPA? Under this Act you will need to prove that the deceased made you an “express” or “implied” promise of reward for the work you did. If this is proven, then the estate will have an obligation to make a reasonable award to you. To succeed in a claim under the TPA, a person must show that: Services or work were rendered by you to the deceased in the deceased’s lifetime; There was a promise from the deceased to you in reward for the services; There is a connection between the services rendered and the promise; and The deceased failed to make the promised testamentary provision or otherwise remunerate you. The term “services” essentially means work. It has been given a broad definition by the Courts, and includes physical work and even emotional support where it goes above and beyond what would usually be expected. A “promise” means any statement or representation of fact or intention. The promise can be expressly made, or it can be implied. Unfortunately, these sorts of claims can be difficult to prove. If there is information to support a promise being made (ie. some evidence in writing), or other witnesses who heard the promise being made, this will help with proving the claim. The Law Commission has recently reviewed succession law, and has recommended a new Inheritance Act to replace these Acts. This reform is expected to take several years, so it will be some time before we see any changes. There are a few things to think about in relation to your Will.  Try our Will questionnaire here, and one of our Estate Planning Team will be in touch.

Dealing with a loved one’s passing is a difficult time. At Holland Beckett Law, we aim to make the estate administration process as simple as possible. In this article we explain, in plain English some of the common legal jargon that you might encounter in the estate’s administration process. Affidavit: A sworn statement for the purpose of being filed in Court. Bequest: A gift made by a person in their Will. Beneficiary/Cestui que trust: A person with an interest/entitlement under a Trust or Will. Capacity: Legal competence to enter into a legally enforceable arrangement. Those who are under 18 do not have legal capacity. There are some exceptions, for example an attorney under the Protection of Personal and Property Rights Act 1988 must be at least 20 years of age. Codicil: A document which adds to or makes changes to a Will. Common form: The standard form of application for probate which is not contested or opposed in any way. Devise: A gift of land in a Will. Disclaim/Renounce: To relinquish/refuse a legal claim to something. For example, an executor may renounce as executor which means they step down from their role and a beneficiary may disclaim/reject a gift made to them under a Will. Estate: Everything that a person owns in their own name at the date of their death. Execution: The act of signing a document in a way required by law. This also includes requirements for the document to be witnessed. Executor: An executor is the person who is appointed by the Will-maker to administer the estate. Issue: All of a person’s descendants (children, grandchildren etc). Intestate: When a person dies without a Will. Legacy: A gift in a Will, usually money. Letters of Administration: An application for administration of an estate where a person has died without a Will. Alternatively, there can be an application for letters of administration where there is a Will but the executor named in the Will has died or for whatever reason, will not apply for probate. Life interest: A grant of the right to use all or part of the estate for the remainder of that person’s lifetime. For example, a Will-maker might leave a beneficiary the right to live in their property for the rest of their lives. Probate: The application to prove or verify a person’s Will and obtain Court authority to act as executor. Residuary beneficiary: A person who will receive a benefit from the remainder of an estate after specific gifts, debts and expenses have been paid. Residuary estate: What remains of an estate after specific gifts, debts and expenses have been provided for. Solemn form: Where probate of a Will is opposed or there is doubt whether probate should be granted. It then involves a hearing before a Judge. Testamentary: Arising under a Will. For example, a testamentary trust is a trust arising under a Will. Testamentary capacity: Competence to make a Will. A Will-maker must be of sound mind. Testator/Testatrix: The male and female words for a Will-maker. It is now more common to simply refer to the person as the Will-maker. Whilst some of the legal jargon is part of the process, we make sure our clients understand the steps in the estate administration process in a plain and simple way, to ensure they understand what is required from them at such a difficult time. If you would like advice regarding an estate, or estate planning our specialist team is here to help.