Clear instructions are vital – Ensure Will instructions are accurately recorded

The recent case of Public Trust v Fairbairn [2023] NZHC 2605 (“Fairbairn”) demonstrates how important it is to provide clear instructions for your Will, and for those instructions to be recorded clearly.

Bruce Henry Sullivan (“the Deceased”) passed away on 14 July 2022. The Deceased had no partner or children, but had three siblings who he had no contact with for 15 years. The Deceased had a fairly isolated life with little contact with friends or family. The one individual the Deceased had regular contact with was his neighbour, Carly Johnson (“Ms Johnson”), who looked after him.

While the Deceased had an existing Will, dated 13 December 2005, when his health began to deteriorate in mid-2022, he contacted the Public Trust requesting they visit him to take instructions for a Will.

On 20 June 2022, Kimberly Rayner (“Ms Rayner”), an employee of the Public Trust, met with the Deceased and filled out parts of the Public Trust’s standard Will Instructions form both by writing notes and with diagrams. Importantly, the Deceased did not sign the form. Prior to this meeting, Ms Rayner attempted to have a doctor assess the Deceased’s testamentary capacity, but was unsuccessful.

Following her meeting with the Deceased, Ms Rayner organised for a Will to be prepared based on the Will Instructions form. On 11 July 2022, Ms Rayner and a colleague met with the Deceased to read through, and witness him execute, the Will. The Deceased confirmed he wished to sign the Will, and did so, prior to his testamentary capacity being assessed.

It was later confirmed that the Deceased did not have testamentary capacity on the day the Will was signed. However, he did have capacity on the day Ms Rayner met with him and took instructions for his Will.

The Public Trust sought an order from the Court to validate the unsigned Will Instructions Form as the valid Will, under section 14 of the Wills Act 2007. Section 14 enables the Court to make a declaration that a document is a valid will even if the document does not meet the formal requirements for a will in section 11 of the Act, provided the Court is satisfied that the document expresses the deceased person’s testamentary intentions.

There were key differences between the Deceased’s 2005 Will, the Will Instructions form, and the signed 2022 Will. Two of the Deceased’s friends were named as beneficiaries in the 2005 Will, and in the 2022 Will, but not in the Will Instructions form. In the Will Instructions form, Ms Johnson was noted in a diagram stating “Carly Johnson” with an arrow to “Carly’s children (none yet)”, followed by the word “Charity” with the names of the four charities and¼ by each.

Ultimately, the Court was satisfied that the Will Instructions Form accurately reflected the Deceased’s intentions because he had testamentary capacity at the time he gave his instructions, unlike the day he signed the 2022 Will. The Court was also satisfied that the fact the Will Instructions Form was not clear did not reflect any uncertainty on the Deceased’s part regarding the testamentary dispositions he wished to make.

It took over a year for the Deceased’s Will instructions to be validated as a Will. However, that situation can be avoided. We suggest planning ahead of time (years before you may think you require a Will!) and regularly reviewing your Will every few years. Unfortunately, no one can predict the future, so it is best to be prepared. If you think you should start planning a Will or would like to discuss your options, contact Sarah Churstain or Fenella Smith.

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