When should I make a Will?

The time to plan your Estate and make a Will is now, when you need it will be too late.

Whatever your assets, have you considered who should inherit them at the time of your death?

No one likes to face up to the inevitability of one’s death, but a sensible person is aware of the disastrous situation that could arise for those left behind if no Will has been prepared.

Despite the fact that so many of our young people are at risk on the roads, playing sport and travelling, few make out a Will, even though from age 18 they are legally entitled to do so.

Any person may make out a Will on attaining 18 years of age, or upon marriage prior to that. Unmarried minors of 16 years may make a Will subject to the approval of the District Court.

What is a Will?

A Will is the document whereby you (the will maker) authorise persons (your executors) to apply to the High Court for authority to deal with your assets (Probate) after your death and to distribute those assets to parties (beneficiaries) in accordance with your Will.

How often should I revise my Will?

Your Will should be revised any time there is a change in your family or personal circumstances. We usually remind clients at five yearly intervals to reconsider their Wills to ensure that they have made adequate provision for changed circumstances.

Who should be my executor or executors?

You can appoint any one you wish as executor, but executors are often close family members. His, her, or their responsibility is to see that your wishes, as expressed in your Will, are fully carried out. Adult children may be suitable executors, however there are many circumstances where outside executors such as members of our firm are preferable. In most Wills the people who are executors are also the trustees.

Do I need to list every asset?

Specific assets should not be mentioned apart from those circumstances where there are particular gifts to be made to particular beneficiaries. By referring to assets in general terms, you do not need to update your Will as assets are disposed of.

Should I appoint guardians?

Many parents have discussed what is to happen to their children if both of them were suddenly killed in an accident. Some parents have close friends or relatives who have expressed a willingness to look after infant children in those circumstances and in these cases, appointment of guardians can be included in the Will. The provision in a Will appointing guardians needs frequent review to ensure the guardians proposed are still appropriate and willing. If a guardian is appointed, ideally there should be at least one executor who is not a guardian.

If I do not have a Will does that mean the government takes my assets?

If a person dies without a Will (“intestate”), the Administration Act 1969 provides a list of beneficiaries in order, starting with a spouse, children, parents, brothers and sisters uncles and aunts. It is only when the list is exhausted and no such relatives located that the Estate becomes government property. See our article What Happens On Death.

Am I restricted in choosing my beneficiaries?

There is no provision in New Zealand law requiring you to leave a specific amount of your Estate to any particular beneficiary. Each person has the freedom to dispose of assets as he or she thinks fit, subject to the possibility of the following claims:

• by a spouse, civil union or de facto partner, under the Property (Relationships) Act 1976
  in relation to a promise of a benefit under a Will made by the testator in return for specific services provided during the testator’s lifetime, under the Law Reform (Testamentary Promises) Act 1949
• by specific classes of relatives (a spouse, civil union or de facto partner, children, grandchildren, stepchildren, parents) on the basis that inadequate provision has been made for them in breach of a testator’s moral duty, under the Family Protection Act 1955
• In each case any claim has to be established to the satisfaction of the court. In particular, for a claim under the Family Protection Act the Court does not rewrite the Will but considers whether the Will requires adjustment to fulfil the duty of the testator.

Can I make my own Will?

Anyone can prepare their own Will and there are various forms available at most stationery shops. In our experience the correct drafting of a Will is not an easy exercise and the “do it yourself” varieties that we have seen are usually unclear in their terms and incorrectly executed. The Will is invalid if incorrectly signed and/or witnessed. If the terms of a Will are not clear, application to the High Court would generally be made for direction as to how the Estate is to be dealt with and distributed.

Is my Will registered?

A Will is not registered anywhere. We recommend that your Will be held in a safe place. Most of our clients’ Wills are held in our deeds room for safekeeping.

Does marriage revoke a Will?

See our article The Impact Of Marriage And Other Relationships on Your Will.

Does selling or buying a home affect my Will?

Any major change in personal circumstances, such as changing your home, selling or buying shares, travelling overseas or planning retirement should be an occasion to revise your Will.

What costs are involved in making a Will?

We charge for preparation for Wills. Our charges for administration of estates are based on the time spent finalising the estate and therefore have regard to the simplicity or complexity involved, rather than being a percentage of the value of the assets administrated. We are happy to give estimates for the preparation of Wills once details of what is required are available.

For further information, please contact Tony Fortune or Katherine McCarthy