The Scope of the Validation Power in the Wills Act 2007

Abstract

When the new Wills Act was adopted in 2007 it made a number of changes to the law regulating wills. Probably the most radical change is the power in s 14 to validate wills that do not comply with the formal requirements for making a valid will in s 11. This change follows Australia’s lead, where a similar power, referred to as a dispensing power, has existed since 1975. Initial concerns that it would encourage sloppy will-making and result in uncertainty and a flood of applications turned out to be groundless. The constraints imposed by the wording of the Australian provisions together with judicial restraint in the exercise of the power, at least initially, as well as the increased cost, delays and uncertainty about the outcome of applications were strong incentives for complying with the formal requirements. The Australian experience and the benefits of saving wills from invalidity on purely technical grounds persuaded the New Zealand Law Commission to recommend the adoption of a similar, though not identical, power in its Report Succession Law — A Succession (Wills) Act in 1997. That recommendation was eventually implemented with the adoption of the Wills Act 2007. The Wills Act 2007 came into force on 1 November 2007. It applies to all persons dying on or after that date, regardless of the date of the will. It was not until August 2009, however, that the validation power was invoked for the first time. The reason for the delay may have been because the validation power could not then be applied to wills made before 1 November 2007 even though the will-maker died after that date. The transitional provisions prevented retrospective application of the validation power. An amendment in 2012 now enables the power to be used in respect of all non-compliant wills regardless of the date they were made.

Since the first application to validate a non-compliant will in 2009 there has been a steady increase in the number of applications. By October 2012 at least 43 applications had been made, of which 41 were successful. The two applications that were declined failed because there was no jurisdiction at the time to validate wills made before 1 November 2007. In the 41 cases where jurisdiction did exist, the success rate was 100 per cent.

From this body of case law a picture is beginning to emerge of a jurisdiction that has the potential to go well beyond its Australian counterpart in giving effect to testamentary intentions. The aim of this article is to evaluate the use of the validation power in New Zealand to determine its scope and assess the risks associated with a broad jurisdiction. Before embarking upon that task, it is necessary to outline the formal requirements for a valid will and explain their purpose.