NZLS Property Law Section issues advice about wills lost or destroyed
The New Zealand Law Society’s Property Law Section has sent a bulletin which provides some advice about the position for wills which were lost or destroyed in the Christchurch earthquake.
The information is as follows:
There is an immediate concern for some lawyers whose clients have died in the quake and whose wills have been destroyed or are inaccessible. Some lawyers are still hopeful that wills and deeds may be retrieved prior to the demolition of buildings.
Many law firms have electronic versions of scanned or unsigned copies of wills saved as part of their back up processes. Where such copies are available, it is possible to obtain a grant of probate of the copy. To do this, you will need to prove the will existed, that it was duly executed, and its contents.
If the lost will is traced to the possession of the will-maker, then it will be necessary to overcome the presumption that it was revoked by the will-maker.
Wills executed after November 2007 will also have the benefit of s14 of the Wills Act 2007 which allows the High Court to validate certain documents (such as an invalidly signed will or possibly a print out of the draft will before it was executed).
In recent times, the Courts have adopted a helpful approach to give effect to will-makers’ intentions. See Dobbie, chapter 10 for helpful commentary and precedent forms 78 to 81.
Statutes Amendment Bill
Clause 94 of the Statutes Amendment Bill (No 2), currently number 28 on the Order Paper, amends s 40(2) of the Wills Act to ensure that wills made before 1 November 2007 also benefit from s 14. The Law Society, with assistance from the Section, is writing to Government to ask that this Bill be prioritised through the Parliamentary process to help streamline the probate application process.
General
The New Zealand Law Society has established temporary service to assist Christchurch lawyers and residents with locating wills where the earthquake damage has created difficulties. In the usual course, it is suggested that clients be invited to review and update their wills every 5 years, or with any significant change of circumstance. Once Christchurch lawyers know the state of the wills and deeds they hold, they might wish to consider sending a communication to their clients, advising them of the state of those documents, and suggesting they might wish to consider executing new wills if necessary.