General information only — not legal advice. Whether a will is valid depends on the requirements of the Wills Act 2007 and the circumstances in which it was made. This guide explains the common reasons a will can be invalid in general terms. If you are concerned about a will, get advice from a qualified New Zealand lawyer.
The short answer
A will can be invalid if it does not meet the legal requirements for making a will, or if it was made in circumstances that undermine it. The most common causes are signing and witnessing mistakes, lack of capacity, undue influence, fraud, and revocation by a later will or marriage. If a will is invalid, it is treated as if it did not exist — and the estate is usually dealt with under an earlier valid will or the intestacy rules.
Signing and witnessing mistakes
Under the Wills Act 2007, a will must be:
- in writing;
- signed by the will-maker (or by another person in their presence and by their direction);
- signed in the presence of at least two witnesses who are present together; and
- attested and signed by each witness in the will-maker’s presence.
Common execution failures include only one witness, witnesses signing at different times, a witness signing when the will-maker is not present, or the will-maker not signing at all. Any of these can make the will invalid.
Lack of capacity
The will-maker must have testamentary capacity at the time the will is made — the ability to understand what a will is, what they own, who might reasonably expect to benefit, and the effect of their decisions. If the will-maker lacked capacity — for example, because of dementia, serious illness, medication or a mental health condition — the will may be invalid.
Undue influence and coercion
A will must be the free act of the will-maker. If someone pressured, threatened or manipulated the person into making a will that did not reflect their own wishes, the will (or the affected part) can be invalid. Undue influence can be subtle — isolation, control, fear or dependence — and it can happen in any relationship.
Fraud, forgery and deception
A will obtained through fraud or deception is invalid. This includes forging a signature, misrepresenting what the document says, tricking the will-maker into signing something they did not intend, or concealing a later will that revokes an earlier one.
Revocation
A will can be revoked — and therefore no longer effective — in ways the will-maker may not expect:
- a later valid will revokes an earlier one;
- marriage or civil union revokes an earlier will unless it was made in contemplation of that event;
- deliberately destroying the will with the intention of revoking it revokes it; and
- a later properly executed document can expressly revoke an earlier will.
A will that has been revoked cannot take effect, even if it is later found. Our guide on revoking a will explains the rules in detail.
Problems with particular gifts
Some problems make only part of a will ineffective rather than the whole document. For example, under section 13 of the Wills Act 2007, a gift to a witness (or their spouse, partner or civil union partner) is void — the rest of the will usually stands, but the beneficiary loses the gift.
What happens if a will is invalid
If a will is invalid, the law treats it as though it was never made. The estate is then dealt with under:
- an earlier valid will, if one exists; or
- the intestacy rules, if there is no other valid will.
That can produce a completely different outcome from what the will-maker intended — which is why validity matters so much, and why disputes over invalid wills are so costly.
How to avoid an invalid will
The essentials:
- make the will in writing, and date it;
- sign it yourself, with two independent witnesses present together;
- have each witness sign in your presence;
- make sure you understand what you are doing, and are acting freely;
- do not use beneficiaries (or their partners) as witnesses;
- make a new will when circumstances change, rather than writing on the old one; and
- get legal advice if there is any doubt about capacity, pressure or the document itself.
The bottom line
A will is invalid when the formal requirements are not met or the will-maker’s freedom and understanding were compromised. The good news is that validity is largely within your control: sign and witness it correctly, make it freely and with understanding, and keep it current. Our guide on witnesses, guide on capacity, and guide on undue influence cover the details.