Children may be able to challenge will
An expert in wills says a family that failed to prevent their elderly father’s estate going to his partner may have other options they could pursue.
The seven children of Kelvin ‘‘Jon’’ Naysmith, who died at the age of 80 in September 2013, tried unsuccessfully to challenge the validity of the will in which he left his entire estate to his partner, Phensri Khophimai.
The children said Naysmith, who lived in Napier, had failing health and had been put under undue influence by Khophimai to sign. They said she was never his partner and claimed the signature on the will was a forgery.
Khophimai, who is in her 50s, disputed this and was successful in having the High Court declare Naysmith’s will was valid.
Justice Karen Clark said she was satisfied Naysmith and Khophimai were in a relationship and there was nothing to suggest he had been unduly influenced, nor that he lacked testamentary capacity.
While the will did not comply with the Wills Act by having only one witness present, ‘‘I am satisfied that the statutory prerequisites for declaring the document to be a valid will are met’’, she said.
Richard Neave, a partner at Duncan Cotterill who specialises in commercial, property and trust law, said although there were strict requirements for a will to be valid, the High Court could validate a will if it was satisfied the document ‘‘expresses the deceased’s testamentary intentions’’.
‘‘Applying to the court to validate a will is more costly and lengthy as there is more rigorous testing by the court requiring evidence of the deceased’s intention. In this case, the judge found that there was credible evidence of the deceased’s intentions,’’ Neave said.
‘‘It is very common in second relationships for the children of a first relationship and the surviving partner of the second relationship to be in dispute over the validity and the provisions in a will.’’