The Risks of Procrastinating Your Will: Testamentary Capacity and Will Validity
While many people believe that a will is something you only need later in life, there are countless risks that come with procrastinating in respect of making or updating your will. No matter your age there is always the possibility of illness or accidents, and having your affairs in order provides peace of mind and simplifies matters for your loved ones.
Younger people may feel they don’t have enough assets to make a will worthwhile, but if you have a KiwiSaver account, a vehicle, savings, or any equity in a property, you’ll likely want to direct where those assets go if the worst happens.
Often people only consider making a will when something goes wrong in life. However, leaving a will until the last minute can be complicated if there are questions around your mental capacity at the time of signing. Loss of mental capacity is not limited to dementia or old age, it can occur at any stage of life due to a variety of reasons including illness, injury, or the effect of medication. As a result, attending to your estate planning early, before there are any concerns around your mental capacity, is always preferable.
Lane v Li [2024] NZHC
The case of Lane v Li highlights the issues that can arise when a will is executed at a time when the will-maker’s mental capacity is in question. In this case, the Court was asked to consider whether the will-maker had the required testamentary capacity at the time of signing his will, which made significant departures from earlier wills, excluded certain children, and substantially benefited a friend who was present during the signing of the will. The will-maker was in the hospital at the time of signing the will and passed away shortly after. The Court found that the will-maker did not possess the necessary mental capacity to enter a new will and so reverted to a previous will.
While making significant changes to your will doesn’t render a new will invalid, if there are already concerns over your mental capacity at the time of signing, major departures from earlier wills can raise red flags should the Court be required to consider the validity of the will. As a result, it is best practice to review and update your will regularly while your capacity is not in question, rather than leaving significant changes until a time when your health may be declining. Obtaining a medical certificate and keeping a clear record of your instructions and the reasons behind any changes can also help to address capacity concerns if questions arise later on.
Will Validity
There are a number of formal requirements that must be met for a will to be valid, however the Court may declare a non-conforming will valid on an application under the Wills Act. The Court’s power to declare a will valid is still subject to the Court being satisfied the will-maker had capacity when making the non-conforming will.[1]
In Estate of Clements [2025] NZHC, the Court was unable to validate the will-maker’s most recent will which didn’t meet the formal requirements, as there were also concerns regarding the will-maker’s mental capacity. The Court also considered the fact that Mr. Clements had made major departures from his earlier wills by excluding the stepchild that he had raised.
Where the Court finds a will invalid, it will then seek to validate an earlier will of the will-maker. If no earlier valid will exists, the will-maker’s estate will be distributed as if they had died intestate (i.e. without a will).
Dying Without a Valid Will (Intestate)
If you die without a valid will, New Zealand’s intestacy rules under the Administration Act 1969 determine how your estate is distributed. These rules follow a fixed order of priority, generally with a portion reserved for your spouse or partner if you have one and your children, then wider family if you don’t have a spouse/partner or children.
The intestacy process does not take account of any wishes of the deceased and can also be more time-consuming and stressful for your loved ones who have to navigate the legal requirements.
Enduring Powers of Attorney
A practical step you can also take is to put enduring power of attorney (EPA) documents in place. In an EPA, you appoint a person you trust to make decisions about your personal care and welfare, and/or your property and finances in the event you lose mental capacity.
It is possible, if selected as an option in the property EPA, for the attorney to apply to the Court for a will to be amended (e.g. because it is defective or materially out of date), or to enter into a new will to give effect to the incapacitated person’s established intentions. Obviously the Court application process would involve time and money, and it is time/cost efficient to have a will in place now while you have the capacity to do so.
Conclusion
You can lose mental capacity, either permanently or just temporarily, for a variety of reasons. While many people automatically think of dementia, incapacity can be caused by accidents or illnesses. Because capacity can change quickly and unexpectedly, waiting until a health event occurs before attending to your estate planning poses a significant risk.
Even if you feel that estate planning is not something relevant to your current stage of life, the reality is that life is unpredictable. Having a valid will and enduring power of attorney documents in place is one of the most important steps you can take to protect yourself and your loved ones – regardless of your age or the size of your estate. If you would like advice on preparing or updating your will and EPA documents, please get in touch with our Private Client team.
Special thanks to Partner Lisa Small and Solicitor Sophie Hall for preparing this article.
Disclaimer: The content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose.
[1] Singleton v Marshall [2019] NZHC 2486 at [25] – [26].
