When is a Will a Will?

24 July 2016

A persons testamentary wishes can be directed in many ways. The best way to do this is by having a will prepared and signed in accordance with the Wills Act 2007 (Wills Act). A correctly prepared will provides certainty that a will maker’s last wishes are clear, and the costs to the estate in obtaining a grant of probate are reduced.

However, there are circumstances where a person may, for many different reasons, not have a correctly prepared will. The Wills Act does make provision for circumstances like this. The recent case Winterburn v Wilson[1] demonstrates how the Wills Act, with the assistance of the Court, can provide a solution in these situations.

In Winterburn v Wilson[2] the deceased, Mrs Richards, had been intending to separate from her de-facto partner of 15 years, Mr Wilson. For that reason Mrs Richards wanted to update her will. The last will Mrs Richards made in 2003 named Mr Wilson as the sole beneficiary of her estate. Mrs Richards now wished to remove Mr Wilson as a beneficiary and gift the majority of her estate to her sons. Mrs Richards met with her solicitor and supplied hand-written instructions she had bought with her, and the solicitor gave her a will instruction sheet to complete. After the meeting the solicitor made a detailed file note of Mrs Richards’ wishes.

Mrs Richards returned the signed will instruction sheet the following day as she was going into hospital for minor surgery. A formal will was not signed. Sadly, Mrs Richards passed away nine days later, after complications with her surgery. The persons named as executors in Mrs Richards’ will instruction sheet applied to the Court asking that her hand-written instructions and the will instruction sheet be declared a valid will. However, Mr Wilson as the removed beneficiary, opposed the application seeking that Mrs Richards’ 2003 will be declared the valid will.

The Court determined that between the hand-written instructions, the will instruction sheet, and the solicitor’s file note there was a clear expression of Mrs Richards’ testamentary instructions. Further, the content of the documents expressed a clear intention to depart from Mrs Richards’ previous will.  Collectively the documents were declared a valid will by the Court thereby revoking Mrs Richards 2003 will. Should Mr Wilson wish to benefit from Mrs Richards estate he would have to seek a remedy under the Property (Relationships) Act 1976.

Although in this instance Mrs Richards’ last wishes were able to be upheld, this came at great cost to the estate, in both legal and court fees and in time. If you wish to be certain that your last wishes are correctly documented, consult with your solicitor early and put a valid will in place.

[1] Winterburn v Wilson [2016] NZHC 1422
[2] Ibid.


Glenda Graham Glenda Graham is an Associate in the Trusts & Estates team at Norris Ward McKinnon. You can contact her at [email protected]

Alice Nunn Alice Nunn is a Senior Solicitor in the Trusts & Estates team at Norris Ward McKinnon. You can contact her at [email protected]