Published: Mon, Nov 1st, 2004 by Raechel Pedrotti

The difficulties and pitfalls of drafting and executing your own Will were highlighted recently in a High Court case in Hamilton. The Court heard of a person that created and signed two Wills on the same day. Which was the one that accurately reflected his wishes?

Mr M had obtained a 'home made will kit' and used it to record his testamentary intentions. The problem arose after he died, when it was discovered that he had executed two documents both of which purported to be his last Will and Testament.

The two documents were dated "8th December 2000" and "8th 2000" respectively. Both documents were signed by the same witnesses, and the evidence presented to the Court established that the Wills were signed on the same day, but no one could remember which one had been signed first.

The difficulty arose when the trustees appointed in the Wills tried to obtain probate for the Wills. (Probate gives the trustees and executors the power to deal with the property of Mr M and to disperse his property in accordance with his wishes). In this case, the application for probate required a formal application to the High Court
and required all people affected by the Wills, and who might have some claim to the estate, being served with the proceedings and being required to instruct solicitors to represent them.

Fortunately, it was accepted by all concerned that both documents should be granted probate as the Wills were essentially of the same effect, with one Will being slightly more detailed version of the other. In those circumstances, where there was essentially no dispute over the Wills, the Court was able to make orders that suited all parties.

If there had have been a dispute, or if the contents of the Wills were significantly different to each other the case would not have been so straight forward.

In any event the matter was not resolved until it went to Court, some 18 months after Mr M's death. The Court awarded costs of $3,337.50 to each of the two groups of beneficiaries, both of whom were represented by solicitors. Those costs, as well as those of the solicitors for the estate, and the disbursements incurred in the proceedings, were all paid from the estate. The costs awarded were undoubtedly used up in legal fees.

Potential Problems

There are dangers in preparing your own Will. If it is incorrectly signed or witnessed, it will not be valid, and in preparing your own Will you run the risk that it will not adequately deal with the distribution of your assets, and the beneficiaries will need to resort to costly legal proceedings.

The law relating to Wills and their administration is very specific, and strictly adhered to. The Court is very conservative when dealing with estate matters as its only guidance is the written wishes of the person who has now died. If those wishes are ambiguous, or there is a problem with the execution of the Will, the beneficiaries will suffer due to costs and delays as a result.

Turner Hopkins are pleased to provide simple Wills for our clients at no charge (sometimes more complicated Wills in special circumstances incur a nominal fee). We recommend that you update your Will every five years to take into account any likely change in circumstances. In order to ascertain the current status of your Will, prepare a new Will, or update an existing Will, please contact Raechel Pedrotti of our Estates Planning Department.

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