Writing a will

A will is an important document for all of you to have. It is the foundation of estate planning. Below are some important aspects of writing a will.

A will is a written document. It is a statement by a person about how his or her personal affairs should be actioned after death. The person making the will is a testator (if male) or a testatrix (if female). The will contains directions which are not just limited to financial affairs but to other matters such as guardianship of children or desired funeral arrangements. A codicil is also a written document. It adds to, alters, explains or confirms an existing will and is made by the same person who made the will. A codicil is prepared signed and witnessed just like a will, and it is read in conjunction with a will.

A will must be signed and witnessed. A verbal will is not usually valid. It must be signed and clearly dated at the end by the testator or testatrix. There must be at least two witnesses present when the signing is done. These people also sign that they are witnesses. This is done in the attestation clause. All the signing is done together in the presence and sight of each other. The witnesses also add their addresses and occupations. The testator or testatrix and the witnesses also initial the preceding pages. Alterations in the will must be clearly defined in the attestation clause and have the signatures of the testator or testatrix, and the witnesses alongside the alteration. Alterations cannot be made to a will after it has been attested, except by a codicil or by revoking the will.

Beneficiaries under a will should not act as witnesses. They will forfeit their benefit when the estate is distributed although, since 1977, this need not happen if there are at least two other valid witnesses who have signed as witnesses.

Too many things can go wrong when an amateur writes a will without professional assistance. Mistakes can cause stress among beneficiaries because a method of distribution is too restrictive or incomplete or there might be unforeseen taxation difficulties.

Any person aged 18 years and over or any person of any age if that person is or has been married, and any minors aged over 16 years with the approval of the Public Trustee or the District Court has testamentary capacity and can make or revoke a valid will. It may be revoked any time before then death of the testator or testatrix, usually through writing a will at a subsequent date, although a subsequent marriage can revoke a will.

Guide to New Zealand Estate Planning and Tax – Clifford Mancer, 1994