Have Good Reasons to Change Your Will
The recent Court of Appeal decision of Loosely v. Powell [2018] NZCA 3 concerned the will of the late Allison Slater, a childless widow who died in May 2014 aged 64.
An earlier will signed in 2011, the year Allison was diagnosed with cancer, divided the residue of her substantial estate equally between her five nieces and nephews. The beneficiaries were her sister Jennifer’s two sons, her sister Barbara’s twin children and an English nephew of Allison’s late husband.
Six days before Allison died, she signed a new will. Her sister Jennifer and her sister’s husband were named as executors and their two sons were the major beneficiaries. Barbara’s two children were to receive $50,000 each. The English nephew was left nothing and his mother was to receive $100,000. This later will signed in 2014 essentially excluded the other nieces and nephews as residuary beneficiaries to the benefit of Jennifer’s two children.On Allison’s death, the executors did not disclose the details of the new will to the other sister Barbara.
However, after probate was granted and the contents of the new will were discovered, protracted court proceedings followed. The Court of Appeal found that Allison lacked testamentary capacity when signing her 2014 will, probate was set aside, and the other three beneficiaries were allowed to share in the two million dollar estate.
There was conflicting evidence about Allison’s state of mind in the weeks prior to her signing the new will: while her lawyer and witnesses found her lucid, the contents of her diary showed a level of confusion. The Court of Appeal also examined Allison’s mother’s explanation that her daughter was concerned that the nephew and niece would fritter away their inheritances. However, the Court disagreed and found that there was an absence of an explanation by Allison or her lawyer to justify the reasons for the material changes to the earlier will.
We recommend you review your will every five years or if there is a life event such as a marriage, birth, separation, or death. If you are making major changes to a previous will or the provisions in your new will treat beneficiaries differently it is important that you record the rationale for those provisions and you discuss them with your lawyer.
Source: InBrief Winter 2018