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Overview

The comments in these pages apply to people who live in New Zealand and also to people who live outside New Zealand, but who own property which is located in New Zealand.

A will lets you say how you want your property to be dealt with when you die. Once you die, everything that you own, and everything that you owe, is called your "estate".

It is said that a will "speaks from the date of death". In preparing your will, you are creating a legally binding document, which, if required, the courts will enforce, in most circumstances. What the will says is what, on and after the date of your death, you want to happen to the things that you own.

Your will contains your instructions about what you want done with your property when you die, and how you want to provide for your dependants (spouse, civil union partner, de facto partner, children, grand-children) and possibly for others.

Who Can Make a Will?

Anyone who is at least 18 years old can make a will.

A person who is under 18 may make a will if he or she is, or has been married, or is or has been in a civil union or de facto relationship.

Others who are under the age of 18 can make a will if given approval by the Family Court, or if they are in the military, or are a seagoing person.

If it is later proved to a court that a person who made a will, or changed a will, was not at the time, competent to manage his or her affairs, in relation to his or her property, the court can decide that the will made by that person is invalid.

If there is any doubt about your competence to make a will, you would be wise to take legal and medical advice at the time that you want to make your will, and to have a proper record made of any advice given. If the advice is that you are not competent, then it is best to postpone the making of the will until you have advice that you are well enough to do so.

When Should You Make a Will?

Even if you don't own much property, it is wise to have a will. Probably the best reason to have a will is to save your family some of the trouble and expense that occurs when a person dies without leaving a will. It can add considerably to the time, expense and trouble that is involved in tidying up the affairs of a person who dies, if the person dies without leaving a will.

You should make a will when you marry or enter into a civil union or a de facto relationship. When you have children, it is especially important to have a will.

What is the Effect of a Change in a Relationship?

If you marry or enter a civil union, any will that you have made before that event is automatically revoked (cancelled), unless it was made in contemplation of that particular marriage or civil union (which is best explicitly stated in the will itself). This applies even if you marry or enter into a civil union with someone who is a beneficiary under your existing will.

You should revise your will if a relationship ends. If you separate from your spouse or civil union partner with the intention of ending the marriage or civil union, provisions in your will relating to your spouse or partner will remain valid until formal separation orders are made by the court, or you are legally divorced.

A separation agreement or a relationship property agreement does not revoke your will. You have to change your will if you want to exclude your spouse or partner before a separation or dissolution order is made.

When you separate legally or divorce, any provisions made for your ex-spouse or civil union partner will be void unless you, as the will-maker, have made it clear in your will that you want them to remain valid.

The situation is different for de facto partners. Entering a de facto relationship does not revoke an earlier will. This means an existing will benefiting someone other than your current de facto partner remains valid and may disadvantage your de facto partner. The ending of a de facto relationship does not revoke provisions in your will relating to your former de facto partner. So, if you don't want that person to be involved in your estate, you must change your will.

Does a Will Guarantee that There Will be No Legal Problems After Your Death?

Not necessarily, but it gives you more control over the destination of your property than dying without a will does. Some statutes (such as the Property (Relationships) Act, Family Protection Act and the Law Reform (Testamentary Promises) Act) allow some people to challenge your will. If there is a prospect that your will might be challenged, it is important to get detailed legal advice in order to minimise the chances of any challenge to your will being successful.

What If You Die Without Leaving a Will?

If you die without leaving a will, you are said to have died "intestate". In that case, the Administration Act specifies how your property will be distributed. This will usually be to a surviving spouse or partner and your immediate family, or to close relatives, in set proportions.

This may not be what you would have wished or what your family wants, and it could involve them and your estate in the cost and effort of making a claim under one or more of the Acts described in the previous paragraphs. If there are no relatives who are in the categories listed in the Administration Act, then your estate goes to the State.

Your lawyer or a family member can still administer your estate if you have not made a will, but only according to the Administration Act. It is usually much more expensive and time consuming to do this, than it would have been if you had left a valid will.

How Do You Make a Will?

Because of the importance of your will, the law says it must be made in a prescribed manner. The LawOnline system ensures that you will make a valid will, as long as you carefully follow all of the advice that you are given by the LawOnline system and carefully follow all of the steps that you are advised to take.

For each will, there can only be one person whose will is being made. Two people cannot make a single will together. They must each make separate wills.

What Should Your Will Include?

Your will should name at least one executor. In the LawOnline will the executor is called an "executor and trustee". While the role of an "executor" and that of a "trustee" are somewhat different, in most cases it is necessary to have both. In the LawOnline will, every executor is called, and is appointed, in both roles. They are called "executors and trustees". This is perfectly normal, and is a usual thing to do.

It is usual for wills to make adequate provision for the will-maker's dependants (spouse, partner, children, and, sometimes, parents. If there are any dependants who have special needs, specific provision is often made for that person). If the will doesn't make these sorts of provisions, then those persons who are not provided for may wish to make a claim on your estate.

A gift to one of your children who dies before you will pass automatically to their child (that is, your grandchild) unless your will says otherwise.

Your will might also say that you want someone to inherit specific personal possessions, possibly in addition to a share of the rest of your estate.

Some people make a provision in their will asking their executor to observe any list they leave about who is to receive particularly valuable or treasured items. If this is handled properly, you may be able to update the list without changing your will. If you do make such a provision and leave a list, be careful not to attach it to your will, but rather just leave it with the will. Attaching anything to a will can cause problems when the time comes to obtain probate, i.e., the approval of the court to administer the will after your death.

Why should you provide for a residuary beneficiary?

It is good practice when preparing your will, to make provision for the event that none of the bequests are effective; perhaps because none of the people to whom you leave your estate are living at the date of your death. In that case, it is wise to specify a charity or some other person to whom everything will go, in that case. If you don't do so, all of your estate will go to the government. Any charity or person who you name for this purpose is called the "residuary beneficiary".

If you wish to provide for more than one residuary beneficiary, then simply provide something like "Medecins sans Frontiere and the New Zealand Red Cross in equal shares".

What are Executors and Trustees and What Do They Do?

An executor is a responsible person who will see that your wishes, as expressed in your will, are carried out, and who will administer your estate until it is properly distributed. Most executors will consult a lawyer who can assist the executor in their duties, which may include paying debts, selling property and distributing the estate in terms of the will. If any claims against the estate are made during this process, the lawyer can advise the executor on how to deal with that issue. Administering an estate usually involves obtaining authority to do so from the court. That authority is called "probate".

An executor can also be named as a beneficiary in your will.

While the role of an "executor" and that of a "trustee" are somewhat different, in most cases it is necessary to have both. In the LawOnline will, every executor is called, and is appointed, in both roles. They are called "executors and trustees".

Who can be appointed?

Most people who are married, or in a permanent relationship, appoint their spouse or partner as the sole executor and trustee, and leave everything to their spouse or partner, if they survive the will-maker. Most then appoint two (2) persons to be their executors and trustees, if their spouse or partner is not living at the date of death of the will-maker. The great majority of wills are made that way.

Administering an estate can involve a lot of work so it is advisable that you ensure that anyone who is to be appointed is willing to take on the role.

If some or all of the assets left in your will are left to one or more beneficiaries, who because of their young age or inability, are unable to manage the property, then your executors and trustees will do the work, and will do so on behalf of the beneficiary concerned.

What if a Trustee Dies?

If an executor and trustee of your estate dies, or becomes incapable or unwilling to act, then any remaining trustee and executor who you have appointed will generally be able to continue to act alone. If the last surviving of your trustees and executors dies, then the person or persons who are the executors and trustees or the deceased trustee's estate will step into the role as trustee and executor of your estate.

What if you also have a family trust?

If you have created a family trust or charitable trust during your lifetime, then any assets that you have transferred to the trustee or trustees of that family trust or charitable trust will no longer be part of your estate for the purposes of your will, and will not be able to be administered by the trustees and executors of your will.

What About Jointly Owned Property?

Any property you own jointly with someone else automatically becomes the property of the surviving person with whom you own it. Your will does not apply to any property that is held in this way. An example is where you own your house jointly with your spouse. If you die before your spouse, the ownership of your interest in the house automatically transfers to your spouse, and it can't be effectively dealt with in your will.

If you own property with others in equal or unequal shares, rather than jointly, on your death, your share becomes part of your estate and is dealt with as your will directs.

Guardianship of Children

Will-makers who have children may appoint a guardian to take over some responsibilities for their children if they die. Guardians appointed under a will are called testamentary guardians. Testamentary guardians do not necessarily provide the day to day care for a child, but are responsible for making the key decisions concerning the upbringing of the child.

While you are not required to name a testamentary guardian for your dependent children, it is a good idea to include one in your will. This is especially important if you are your children's sole guardian.

Obviously, the appointment of a guardian doesn't still have effect in respect of any child who, by the time that you die, has reached 18 years of age.

Funeral Arrangements

You can set out any specific funeral arrangements that you want, although those organising your funeral are not legally bound to follow those instructions. Of course, most executors will do everything reasonably possible to follow any wishes that you have expressed.

You are best to simply state any preference that you have for burial or cremation and to leave any detailed wishes about any ceremony with your family, by discussing it with them directly, or in a separate note or letter.

It can be a matter of relief to some people to know what it is that you wanted at your funeral or memorial service or, if you did or did not want anything particular.

Who Should You Name As Beneficiaries?

Beneficiaries are the people who inherit your property. They benefit from gifts in your will. You can name anyone and any organisation you like as beneficiaries, but remember, there are circumstances in which people can challenge your will.

For instance, it is usual to provide for your spouse or partner, children, possibly grandchildren and, in some cases, parents.

Your will can also include a bequest or a gift to charity. This might be a specific gift, such as an amount of money or shares or a gift of any undistributed residue. A residuary gift would be of anything that is not effectively dealt with by other provisions in your will. For example, if you were to leave everything to your only relative, say your sister, but she dies before she becomes entitled to receive what your will provides. If you have provided that the undistributed residue is to go to a particular charity, then the charity will receive everything.

What is a Cash Bequest?

A cash bequest is an amount of money that you provide to be paid to someone named in your will. It is not paid until after you have died. It is the same as a gift, but it is a gift that is not made by you during your lifetime. It is made after you have gone.

You do not have to make a cash bequest if you don't want to, and many people make wills without cash bequest provisions in them.

You can change your mind about the cash bequest at any time while you are able to change your will. You can name an individual person or a charity, but typically it will be a cash amount to be paid out of your estate to a relative or friend who you want to single out for a special cash gift after you die.

What if Anyone is Unhappy about the Provisions in Your Will?

You can make any provision in your will that you like, about who you wish to leave your property to. However, if you owe a moral or legal duty to provide for someone, for example, your children, and if you do not make adequate provision for them, then you raise the possibility that your will might be challenged successfully. We recommend that you take a cautious approach.

In the creation of wills, there is a difference between what is possible and what is wise.

LawOnline does not guarantee that your will will survive any challenge.

If you are determined not to make provision for a family member or make what might be seen by others as an inadequate provision, the family member might succeed in a claim to the court. While some people might regard the following actions as extreme, you can do things that make it more likely than not that a disaffected family member will fail in a claim. For example:

  • You could give away property during your lifetime, or
  • You might own the property jointly with someone to whom you want it to go after your death, so that it automatically transfers fully to the person with who you own it jointly, in the event that you die before that person
  • You might add an express statement in your will which explains why you are failing to make provision for the family member. You should however be aware that the court may not agree that the facts set out in your statement provide a sufficient reason not to make a provision for the family member. The LawOnline will service does not enable you to make such a statement and if you wish to do so, you should choose another method of making your will.

Also, if you have promised to leave a certain item or some money to someone who has helped you, but you don't make provision for that in your will, the person can make a claim under the Law Reform (Testamentary Promises) Act.

Who Should Witness Your Will?

It is best for any witness to your will not to be a beneficiary. In other words, you should not have anyone who might receive a benefit under your will, to witness your signature of it.

Usually you cannot leave any gift to a person who witnesses your will, or to any spouse, civil union partner or de facto partner of a witness. However, if you do leave such a gift, it may be declared valid if those who would otherwise benefit agree, or if the court is satisfied that the will-maker knew and approved of the gift, and made it voluntarily.

Does Making a Will Restrict What You Can Do With Your Property During Your Lifetime?

A will does not prevent you from selling or giving away anything or dealing with your property in any way you choose during your lifetime. Your will takes effect from the date of your death, not from when you sign it.

However, sometimes two people make mutual wills agreeing on how they will dispose of certain property. They agree to keep the same arrangement in any future will. Under the Wills Act 2007, if the first person to die keeps the promise but the second person to die does not, an intended beneficiary can make a claim against the second person's estate.

Overseas Property

If you have property outside of New Zealand, it may be advisable to have separate wills for each country in which you have assets. Administrative difficulties can arise where the original will is held in one country and there are assets in another.

A will which is intended to operate in a foreign country must be formally valid and its provisions must be compatible with the law of the foreign country.

The law of the foreign country might differ from our own in several respects:

(a) the law of a foreign country may provide that the spouse or the children of the will-maker take a minimum fixed share of the estate, and that this cannot be reduced by will;

(b) guardianship arrangements for children will almost certainly differ from ours;

(c) the identity and role of the executor may differ from those in New Zealand;

(d) the law relating to de facto spouses and civil union partners, adopted children and illegitimate children could well be different; and

(e) the taxation laws are likely to be different from our own.

It may be necessary to seek advice from a lawyer who practises in the foreign jurisdiction or from a New Zealand lawyer who has knowledge of the law in that foreign jurisdiction.

Can You Cancel or Change Your Will?

You can revoke or cancel your will at any time by:

(a) making a new will;

(b) declaring in writing that you revoke your existing will;

(c) destroying your will with the intention of revoking it. The simplest and most effective way to do this is to tear it into pieces and throw it away or burn it;

(d) otherwise showing an intention to revoke it, for example by writing across the will that it is revoked.

When you make a new will, you should start by inserting a clause revoking all previous wills. That is what the LawOnline will forms provide.

It is a good idea to tell anyone who is holding a previous will if it is no longer current. You should also consider advising any previous executors and trustees if they have been replaced, although it is not legally necessary for you to do so.

When Should You Review Your Will?

You should review your will whenever your life circumstances change, for example,

(a) if you marry or enter into a civil union or de facto relationship, or

(b) when such a relationship ends; or

(c) if any trustee or significant beneficiary named in the will dies; or

(d) if your assets or debts change significantly.

It may be that your will does not need changing, but you should think about whether your will still makes the provisions that you want, or whether it may have become invalid because of a new marriage or civil union, or because you have legally separated or divorced.

You should also review your will if the law changes. Some major changes in recent years have affected wills. If your will has been made since 1 November 2007, it is unlikely to have been affected by the law changes that were made in 2007.

Where Should You Keep Your Will?

You should store your will in a safe place, where it is not likely to be lost or damaged. Remember that paper is subject to decay from damp, mould and insect attack.

You should tell your executors, a family member or a friend where your will is stored.

If you do decide to give anyone a copy of your will, remember to either tell that person if your will is changed or to give the same person a copy of any new will, if you make a new one. If you don't do this, there is a danger that the old will might be mistaken for your current will after you die.

What If a Will is Lost?

If the original signed copy of a will cannot be found, the court may approve a copy. It is necessary to prove that the will was signed, was not revoked and that the original has been accidentally lost or destroyed.

If no will can be found after you die, or if there is no evidence that the will was signed and not revoked, then you will be deemed to have died intestate, and your estate will be handled according to the provisions of the Administration Act.

What Could Make a Will Invalid?

A number of things can make your will, or parts of it, invalid. These include:

(a) if you have married, entered a civil union or ended a marriage or civil union with a court order, since the will was made;

(b) if the will was not signed and witnessed properly;

(c) if there was some undue pressure or influence on you to dispose of your property in a certain way;

(d) if you are proved to have not been capable of managing your own affairs, or were under-age when you made the will;

(e) if it is not clear that you specifically approved a gift to a witness (or spouse or partner of a witness).

Parts of a will may be invalid if they are meaningless, ambiguous or uncertain. However, the court can use external evidence, including evidence of the your testamentary intentions, to interpret words in a will to determine their meaning.

If you did not sign the will or if mistakes were made in the witnessing of the will, the court can still declare that your will is valid, if it considers that the document expresses your testamentary intentions. That power can only be used in respect of wills which made after 1 November 2007. The court can correct a will containing a clerical error, or if the will does not give effect to your instructions. A military or seagoing person may make an informal will (a will that would otherwise be invalid) provided that certain conditions are met.

Mutual Wills

It is possible for two people to make mutual wills, and for each to make promises to each other, and to agree that they will make some specific provision in each of their wills, and will not later make changes that fail to keep the agreement. The court, if the existence of the promise can be proved, will make sure that any person who would have received a benefit if the promise had been kept, will receive it.

A typical example would be de facto partners who have lived together and have accumulated valuable property, some of which they each own separately. They make mutual wills in which they agree to leave their share in their property to the other, if he or she survives, but if not, then to leave something to a family member of one or other of the partners. They promise to each other that after the death of one of them, the survivor will not change his or her will in a way that doesn't make the same provisions for the family member. After the death of the first to die, the survivor changes his or her will to remove provision for the deceased person's family member. In this case, if the family member is able to prove that the promise was made, the court will make sure that the family member receives what was agreed.

Proving the existence of the promise can be difficult.

What About Maori Land?

There are special laws governing who can inherit Maori land. If your estate includes, or might include, an interest in Maori land, you should make enquiries from a lawyer who understands the law relating to the inheritance of Maori land, before you prepare your will.

Essentially, you are only able to leave an interest in Maori land to your blood and adopted relatives.

Enduring Powers of Attorney

When you are making your will, you should also think about preparing an enduring power of attorney. This is a way of nominating and empowering someone who can manage your care and your property, if you become incapacitated through accident or illness. Enduring powers of attorney must be made before you become incapacitated.

Enduring powers of attorney in relation to property can come into effect immediately and will continue to apply if you become incapacitated. Enduring powers of attorney in relation to your personal care and welfare come into effect only when you are incapacitated.

Living Wills and Advance Care Directives

A living will or advance care directive, (they are different names for largely the same thing) is a written or oral instruction made while you are in good physical and mental health. It explains what you would want to happen should you suffer an illness or accident that leaves you incompetent to make decisions about your health care. It can also be called a "statement of wishes regarding health treatment". A living will or advance care directive is not an alternative to an enduring power of attorney. Enduring powers of attorney give people the legal power to act for you in whatever way they think fit, while you are alive but incapacitated.

The living will or advance directive may not be legally effective but can give your family and the medical profession an indication of your wishes. If it covers the particular circumstances that have arisen and expresses your true wishes, then it would be lawful to rely on the directive and possibly unlawful to ignore it.

There are several guides to advance care directives that can be readily found by a New Zealand focussed internet search for the expression "advance care directive".

The advice in these pages was last reviewed on and is correct as at 7 July 2016.

Open Advice

Your LawOnline Will

Personal

Personal Details

Testator


Important! Please ensure the name is correct as it cannot be changed once you have completed this document.



Marriage


     



     


Executor

Trustees/Executors

Who do you wish to appoint as Trustees/Executors of your will?

An executor is a responsible person who will see that your wishes, as expressed in your will, are carried out, and who will administer your estate until it is properly distributed.

 
 
 
 
 
 
 
 
 
 
Who do you wish to appoint as Trustees/Executors of your will?

An executor is a responsible person who will see that your wishes, as expressed in your will, are carried out, and who will administer your estate until it is properly distributed.

 
 
 
 
 
 
 
 
 

Most people who are making a will choose their spouse, friend, relative, solicitor, accountant, or a combination of those people, to be their executors and trustees.

It is also possible to choose a trustee company. There are currently only 7 companies who are able to be appointed as trustees of wills in New Zealand. You can select one of them if you wish to.

Individual Named Trustee/Executor:




First Named Trustee/Executor:



Second Named Trustee/Executor:



Cash

Cash Bequests  

 

Only use this provision if you wish your will to make specific cash gifts from your estate.

Property

Property Bequests

 

Only use this provision if you wish to give specific items of property.

Life Interest

Life Interest in house

If you personally own the entire interest in your house, in other words, no one else owns any interest in the house, then you may wish to allow some person to live in it after your death. Please note that if you own your house jointly with your spouse (or with anyone else), you should not use this provision.

     

Effects

Personal Effects

Optionally, make a list of specific items of your personal property to go to named people:

This option enables you to decide the distribution of specific items as you see fit at later times.

Optionally, leave all your clothing and jewellery to a named person:

Estate

Estate


 
 
 
 
 

Residue

Residuary Beneficiary

Who do you want to leave your estate to should none of your beneficiaries survive you?


If you wish to provide for more than one residuary beneficiary, then simply provide something like "the Australian Red Cross and Medecins sans Frontiere in equal shares".

It is good practice when preparing your will, to make provision for the event that none of the bequests are effective; perhaps because none of the people or charities to whom you leave your estate are living at the date of your death. In that case, it is wise to specify a charity or some other person to whom everything will go. If you don't do so, all of your estate will go to the government.

Guardian

Guardian of Children


        

Remains

Disposal of Remains

You do not have to make any provision for the disposal of your remains. If you do so, that does not create a legal requirement that your wishes be honoured. Your executors have the legal obligation and power to decide what happens to your remains. However, express provisions will usually be followed.

It is best not to make detailed provisions in your will for any funeral arrangements.


 
 
 

Completion

Almost Done!

When all the steps above show    blue    you have successfully completed your will.

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Once you have registered, and made your payment, your document will be available on your LawOnline dashboard, and may be securely downloaded and emailed from there.

Instructions for signing and storing will be included with your downloadable document.