Will Kits and Handwritten Wills — What Can Go Wrong? A Case Study

21 June, 2023 | Kimberley Brown

The Story of Two Hand-Written Wills Done On The Same Day (With No Legal Advice Obtained)

Hand written wills and do-it-yourself “will kits” can seem like a cost effective option compared to engaging the services of a lawyer, but unfortunately, they often end up costing thousands to deal with when your estate comes to be administered.

Our Estate team often find themselves helping distressed family members who have to deal with the mess that can be left behind when solid legal advice is not sought when drafting a will. The story below outlines a real life situation, what went wrong, how we dealt with it and how to prevent the same thing happening to your or your family.

The situation

We were contacted by a family who were trying to get Probate for their mum’s will, and had been trying to do so since her death almost two years prior.

Prior to her death, their mum, “the deceased” had been very ill in hospital. She decided she wanted to make a will, as she didn’t have one. She wanted to appoint her friend as the executor.

The first handwritten will

Her friend was at hospital with her, and she asked the hospital staff for some paper to write the will out on. The staff handed her a piece of paper that was blank on one side, but the other side was Page 4 of a form that the nurses had already written on.

On the blank side of the paper the will was completed with details of the executor (her friend) and how the estate was to be distributed. The will was then signed by the deceased and witnessed by two independent people, which was the right thing to do.

The second hand written Will – a “Will-Kit”

Her friend also produced a Will Kit form that was called a “Will for a Married Person who has Children”. They completed this form, where the deceased circled the word “Husband” to be appointed as the executor (in contradiction with the first Will).

Her friend (the same friend appointed as executor in the other will) was to be appointed as executor if the husband predeceased her or was unwilling or unable to act as executor.

The Will Kit form was then signed by the deceased and witnessed by the same two independent people, and dated the same day as the will that was done on the back of the hospital form.

What we did

When the family came to us we contacted the registrars at the High Court to ask how to deal with it, and we were told by one of the registrars to get Probate of the two wills together, as if they were one.

We arranged for the husband to complete a “Renunciation of Probate”, which would allow the friend to apply to be executor in his place for the Will Kit form will, as she was also the named executor of the other hand-written will.

We then completed a very long affidavit explaining that the two wills had been done at the same time and signed on the same day, and that the deceased’s signature had been witnessed by the same two people on both wills.

We also tried to explain the staple holes in the corner of the will that was written on the back of the hospital form (which said “Page 4 of 4”). The executor (the friend) swore that she did not staple or un-staple anything to the piece of paper.

We filed the affidavit and related documents at the Court, but they came back to us, rejected by the Court.

A different registrar at the Court suggested that if one of the wills were made first, that the second will would have revoked it.

We went back to the friend (the named executor) and one of the witnesses to the signing of the will and asked if one of the wills was made first. They both agreed that the two wills were really done at the same time, so we went back to the registrar to confirm this, and told him that the other registrar (his colleague) had told us to get Probate of both of the wills together.

We then asked the family for information on who organised the writing of the will and obtaining the Will Kit form, and who held the will after it was signed / before the family brought it to us. It turned out it was the friend (the named executor), so we had to get lots of information from her about the preparation and signing of the will, and what happened to the will after it was signed.

We completed a very extensive affidavit and got the friend back into our offices to swear it, and then filed it at the Court.

We also had to get one of the witnesses to the signing of the two wills to come in to our offices and swear an affidavit to say that the two witnesses were “in the presence of the deceased and in the presence of each other when the will was signed”, as this needs to be stated on a will, and because they didn’t know that it had not been stated on the will.

The result

We finally obtained Probate of the two wills, two and a half years after the family first started trying, and the process cost the family thousands of dollars.

The lesson

The New Zealand Courts have very strict rules about how a will must be drafted, signed and witnessed, and the state in which it can be when it is sent to the Court for probate to be granted. It is extremely easy for handwritten wills and will kits to get this wrong – resulting in countless extra costs, stress and time when it comes to getting probate.

In the end, it would have been far cheaper to get an experienced Wills lawyer to draft the will. Smith and Partners even offer the service of travelling to clients to draft their wills, when the clients are unable to travel to our office due to ill heath.

Do you need a properly drafted will to ensure your wishes are followed? To schedule an appointment with Kimberley Brown please contact her personal assistant, Suzanne Sumner by email on suzanne.sumner@smithpartners.co.nz or by phoning 09 837 6840.