Can My Parents Sign a Will if they are already in a Rest Home?

For a will to be valid, it must be done in a prescribed manner pursuant to the Wills Act 2007 and must meet the requirements below:

1. In writing;

2. Signed by the will-maker and two witnesses (all being present together and seeing each other sign the will).

3. Intended to take effect as a will;

4. The will-maker has testamentary capacity.  

The witnesses of the will is important. But even if your parent’s will does not meet all of the above formal requirements, in some narrow circumstances, the High Court has the power to declare that a will is valid. The judge can do this if they are satisfied that the document expresses what the person wanted to happen to their property after their death – their “testamentary intentions”. The judge only has to be satisfied on the balance of probabilities that it’s more likely than not. The judge can take into account other evidence of what their intentions were, including any statements they might have made, whether written or spoken.

Testamentary Capacity

In addition to the above, one of the most important factors of making a will, is whether the will-maker has “testamentary capacity”, this is the mental capacity to make a will. Anyone who wants to leave instructions on the succession of their properties must be of sound mind, memory, and understanding. In order to have testamentary capacity, the will maker must have the ability to understand the following:

1. The nature of a will and its effects;

2. Knowledge of the extent and nature of the property in their estate;

3. Knowledge of the nature and extent of the potential claims upon the Will-maker, including those who the Will-maker included and those who are excluded from their Wills; and

4. Have a sound mind and is aware of one’s disposition is their will when he or she executes the will.

Often when one’s parents get older, the deterioration of different mental faculties may affect ones “testamentary capacity”. It is important to note that although a parent may have some difficulties in capacity, they may nonetheless still be deemed capable of creating a legal document and leaves instruction of how their properties should be inherited.   In other words, the fact that one may not be able to craft an article to be published in the newspaper does not mean one is not able to leave simple instructions on who should be inheriting what part of their estate.

However, if there are any signs that a parent may “lack” testamentary capacity (be it an outcome deteriorating mental capacity, sickness, impact of medication or frequently not lucid), it would be unwise to proceed to sign a will without the will maker completing a test for capacity[4]. In this case, a medical assessment of capacity should be sought. It would be advisable to have such a test to be done by a geriatrician or someone with specialist knowledge of geriatric medical experience.

In the event that your parent’s will may be challenged on grounds of lack of testamentary capacity, a medical assessment will be useful to support that the parent had full testamentary capacity and was of sound mind and aware of one’s disposition in their will at the time they executed the will, even if they subsequently become incapable shortly afterwards.

Change of Circumstances after a Will has been made

Once a will has been made, it is wise for the will-maker to review the will regularly for example, every 5 years.  A will-maker should review their will whenever their circumstances change.  Such change of circumstances may include:

1. Marrying or entering into a civil union or de facto relationship, or when such a relationship ends;

2. If any trustee or significant beneficiary named in the will dies; or

3. If the assets or debts change significantly.

In these cases, with aging parents, it would be crucial to obtain a medical assessment of capacity each time the will is reviewed to ensure it is validly executed.

Other challenges to your parent’s Will

Having a will gives the will-maker more control over the succession of their property than dying without a will.   Some legislation (such as the Property (Relationships) Act, Family Protection Act and the Law Reform (Testamentary Promises) Act) allow certain people to raise challenge(s) to a will.   It is important to get legal advice to minimise the possibility of any challenge.

If you would like to make a query or book a consultation, please contact us by calling 09 366 6860, emailing info@focuslaw.co.nz, or filling out our secure and confidential contact form.