Researchers say our brains do their best to keep us from dwelling on our inevitable demise. It is probably no surprise then that planning for the distribution of assets after ones death may not be the most pleasant thing to think about – it is estimated that almost half of New Zealand’s adults do not have a will.
September is wills month in New Zealand. If you do not have a will, make a commitment to yourself to make a will before the end of September. If you do have a will, then take the opportunity to review it and consider whether it needs updating. If you really cannot bring yourself to do either, then at least commit to taking some time to think about it.
As a starting point, we will provide some insights and information into making a will and estate planning by answering some common questions related to wills. This article is intended to be an expansion to those questions and answers which we have already covered in our article “Making A Will – Questions And Answers”.
What happens to my assets if I die without a will?
We have discussed this in our article “What Happens On Death”, however we will expand on this further.
In summary, if someone dies without a will, letters of Administration will need to be applied for to the High Court. Once Letters of Administration have been granted by the High Court, who is entitled to a share of the Estate and the size of that share is dictated by section 77 of the Administration Act 1969 (“the Act”). This provision outlines how the Estate is to be distributed depending on the persons who survive the deceased.
For example, if there is a surviving spouse or de facto partner, and children, the surviving spouse or de facto partner takes all personal chattels absolutely (which is defined in section 2(1) in the Act and includes vehicles, boats, garden effects, domestic animals, books, furniture, jewellery, etc). From the residue of the Estate, the surviving spouse or de facto partner is firstly entitled to the prescribed amount ($155,000.00 as at the date of writing). Anything that remains of the residue is then divided one-third for the surviving spouse or de facto partner and two-thirds for the surviving children.
For a husband and wife who have children and are not a blended family, it is not uncommon for one spouse to wish that the surviving spouse be the sole beneficiary in the first instance and the children only inherit once the surviving spouse passes away. While the Act may provide a prescribed mechanism for how the Estate is to be distributed in the event there is no will, it may not be what you would prefer.
I do not have any family to leave my assets to – does that mean I do not need a will?
In the event that there is no surviving spouse or de facto partner, children, grandchildren, parents, siblings (whether of full or half blood), grandparents, uncle or aunts (whether of full or half blood), then the Estate belongs to the Crown.
If the idea of your entire Estate potentially belonging to the Government in that event is not one that sits well with you, you should make a will. It occurs to us that perhaps you as the reader could be a staunch supporter of the Government and therefore might not feel adversely about that idea – it is perhaps worth clarifying here, that this is not the same as a donation to a particular political party.
You could consider making a will which leaves your Estate to more distant blood relatives or close friends.
Is there a cause which you are passionate about? You could consider leaving your Estate to a charity (or multiple charities) which you have been involved with during your lifetime or a cause which you believe in.
Can I use ChatGPT or similar virtual assistant to write my will?
As lawyers, we have the privilege of dealing with clients from all walks of life. Our experience is that assets and families can be complicated. It follows that care and thoughtful consideration should be given to writing wills. Many of the online will-making services being offered are on simple will templates and are not a “one size fits all”. There is also a possibility that the will template is so universal that it does not meet the specific requirements for valid wills in New Zealand.
We therefore do not recommend using virtual assistants or making wills online.
How do I change or revoke a will?
If you need to change or revoke your will, it is best to work with a lawyer skilled in wills and estate planning to ensure that it is a drafted in accordance with your intentions and that the changes can be implemented.
In years past, a will was sometimes changed by signing a codicil, which is a separate document that modifies or supplements the existing will. This may be an option if there is one minor change – in the days of law firms using typewriters, it would save re-typing the entire will. However, in recent times with the ability to save typed documents, changing a will by codicil has become much less common and changes are now often made by writing a new will. A new will normally includes a provision which revokes any previous wills.
I have made a will in another country. Does that mean I do not need a will in New Zealand?
It may be possible to re-seal Probate for a will made in another country, for example, a will sealed in a Commonwealth country, such as Australia can be resealed in New Zealand.
If your will is made in a country which probate cannot be resealed in New Zealand, for example, because it is not a Commonwealth country or no Order in Council applies, or if your overseas will is in a language other than English, you should make a will in New Zealand to enable your New Zealand assets to be dealt with. We have summarised the Probate application process in our article “What Happens On Death”.
Even if probate can be re-sealed in New Zealand, you could consider making a will which applies only to your New Zealand-based assets and separate will(s) for your overseas assets.
How can I ensure that my will is legally binding?
Section 11 of the Wills Act 2007 sets out the requirements for a will to be valid in New Zealand, there are several requirements that must be met:
It must be in writing.
The will-maker must sign the document and at least two witnesses must be together in the will-maker’s presence when the will-maker signs the document and each sign the document in the will-maker’s presence.
As evidence of compliance, at least two witnesses may each state on the document, in the will-maker’s presence, that he or she was present with the other witnesses when the will-maker signed the document and that he or she signed the document in the will-maker’s presence.
A lot of “homemade” wills we see often fail to meet these requirements, which if not re-drafted, risk being challenged for their validity. Assistance should be sought from a lawyer skilled in wills and estates planning to ensure that all legal requirements are met.
It is ultimately a personal decision as to whether to write a will, but it is important to consider the potential consequences of not having a will in place. This September, take the time to consider how you would like to provide for your loved ones after you are gone and contact your lawyer to make a will. For further information, please contact Jack Soh, Kesha Meredith or Katherine McCarthy.