Introduction

In the mid nineteen nineties the New Zealand Law Commission embarked on a review of succession law. After consultation, it formed the view that New Zealanders valued testamentary freedom, but that there were several undesirable obstacles and constraints interfering with the exercise of that freedom. To overcome those obstacles, the Law Commission proposed changes to the law governing claims against deceased estates as well as the adoption of a new Wills Act. The Law Commission’s overall aim was to propose legislation that gave better effect to testamentary wishes subject to limitations that broadly reflected inter vivos obligations.

The Commission issued Report 41 Succession Law – A Succession (Wills) Act in 1997. The draft Act included in that report formed the basis of the Wills Act that was eventually adopted in 2007. However, the Act departs in significant respects from the Law Commission proposal. Some of the changes have had unexpected consequences, which have had the effect of defeating testamentary intentions rather than upholding them. Fortunately, there is currently a Bill before Parliament that will remedy several of these problems if it is implemented in its current form.^[1]

This paper will focus on testamentary formalities, the validation power, construction and rectification of wills under the Wills Act 2007. As a result of the Canterbury earthquake the issue of lost wills is a matter of current concern. This paper will consider the process for dealing with lost wills and the extent to which the Wills Act may assist in obtaining probate of lost wills.