Overview on Making a Will

Community Law

Note: The law dealing with making a will is mainly governed by the Wills Act 2007. However, if you made your will before 1 November 2007, some of the earlier law contained in the old Wills Act 1837 (UK) still applies.

Who can make a will?

Wills Act 2007, ss 9, 10

The following people can make a will:

·         A person who is 18 years old or over and of sound mind.

·         A person who is under 18 years and of sound mind, if:

· they are or have been married, in a civil union or in a de facto relationship, or

· they have agreed to marry or enter a civil union with another person, where the will is made in contemplation of the marriage or civil union (however, the will only becomes valid once the marriage or civil union takes place), or

· they satisfy the Family Court that they understand the effect of making a will (or the action they have asked the court to approve), or

· they are in the New Zealand Armed Forces and are, at the time of making the will, engaged in war or peacekeeping, are at sea, or are a prisoner of war (or are about to comply with an order to train for or join the New Zealand Armed Forces for service), or

· they are a seafarer at sea or are about to comply with an order to join a ship as a seafarer.

Interpretation Act 1999, s 29A

Note: The law defines a de facto relationship as a relationship between two people of the same or opposite sex who live together as a couple but who are not married to or in a civil union with each other. They must be 16 years old or older (although parental consent is required if either party is 16 or 17 years old).

What can I put into my will?

The aim of your will is to express your wishes about what should happen to your body, your estate and your dependents after you die. This means that a will can cover a wide range of issues. The most common things to include in a will are:

·         The revocation of any earlier will.

·         The appointment of one or more executors, who will be responsible for administering your estate after you die (see “Who’s who: Executors and other key people” in this chapter).

·         Directions for funeral arrangements (for example, cremation or burial and whether or not there is to be a particular ceremony or church service). These wishes are not strictly binding on the executor, but it would be unusual for an executor not to follow them (see “Burial and cremation” in the chapter “A death in the family”).

·         Directions for any donations of body parts to research or for medical use. It is also a good idea for these instructions to be recorded elsewhere, as a will may not be read in time for an organ or tissue donation to take place.

·         Who is to inherit property and other possessions.

·         The appointment of a testamentary guardian or guardians and directions about the care of any children. A testamentary guardian acts jointly with any other guardian. However, a testamentary guardian does not have the automatic right to provide day-to-day care for a child. They must apply to the court if they want to be involved in the child’s day-to-day care (see the chapter “Parents, guardians and caregivers”).

Note: Although you can also use your will to give consent to being an organ donor, it will usually be too late for your organs to be used by the time your will is finally read. It’s therefore better to record your consent in a separate, witnessed document, and tell your family or friends about it. For more details, see “Organ donation: Who decides” in the chapter, “A death in the family”.

What requirements must I meet for my will to be valid?

Wills Act 2007, s 11

To be valid, your will must be:

·         in writing, and

·         signed at the end by you and two witnesses, with all three being present together, and with all three seeing each other sign, and

·         intended by you to take effect as a will, and

·         completed when you have legal capacity.

However, if your will doesn’t meet all those requirements, the courts can still declare it to be a valid will: see below.

As a matter of good practice, you as the will-maker and each of the witnesses should also sign the foot of each page preceding the last page. This helps to guard against any suggestion that pages have been inserted in the will after it was signed.

Can courts can approve my will even if it’s formally invalid?

Wills Act 2007, s 14;

Even if your will doesn’t meet all of the formal requirements (for example, if you had only one witness, not two), the High Court has the power to declare that it’s a valid will. The judge can do this if they’re satisfied that the document expresses what you wanted to happen to your property after your death – your “testamentary intentions”. The judge only has to be satisfied on the balance of probabilities that it’s more likely than not.

The judge can take into account other evidence of what your intentions were, including any statements you’d made, whether written or spoken.

The courts have used this validating power quite often, particularly in cases when no-one opposes the judge making the declaration. The vast majority of cases have involved wills that weren’t properly witnessed, or wills that were prepared by a lawyer but not signed by the will-maker.

If a few years have passed since you made your will, the judge will need to be satisfied that you didn’t later change your mind. But the long delay won’t, in itself, stop the judge validating the will. For example, if you made a will years ago and never signed it, this might only be because you didn’t realise you had to sign it.

Even a suicide note can be declared a valid will, and so can documents in various electronic forms, like text messages, emails and videos.

Who can be a witness to the making of my will?

Wills Act 2007, ss 12, 13

Anyone over 18 years old can be a witness to the making of your will. The person does not have to be personally known to you.

However, a person who is a beneficiary under the will should not act as a witness. If property is left to a witness or to their spouse, civil union partner or de facto partner, none of these people will be allowed to receive that gift, unless:

·         the will has at least two other witnesses who are not beneficiaries, and who are not the spouse, civil union partner or de facto partner of a beneficiary, or

·         the gift is the repayment of a debt, or

·         the other beneficiaries (having legal capacity) agree, or

·         the High Court is satisfied that the will-maker knew and approved of the gift and made the gift voluntarily.

Do I need a lawyer to make a will?

Although you can make your own will, home-made wills are often open to being challenged or may raise difficulties when probate is sought (see “Challenging a will” in this chapter). It is a good idea to get the help of a lawyer, or a trust company, such as the Public Trust, to prepare a will. This will help to ensure that the will is legally correct and to protect it from being challenged.

How do I find out how much will it cost to make my will?

If you intend to use a lawyer to prepare your will, ask the lawyer for a quote. Usually the lawyer will charge a fee based on their time. If you want to make a will, it is a good idea to shop around for quotes first before settling on a particular lawyer.

If you use a trust company, such as the Public Trust, to prepare your will, and you agree that the trust company will be your executor and trustee, then the trust company will prepare the will for free (see “Executor” and “Trustee” in “Key people” in this chapter). However, the trust company will charge for administering the will once you have died and will take its administration costs out of your estate.

If you use a trust company to prepare your will but you want someone else to be the executor, the trust company may charge a fee based on its time.

Lawyers and trust companies charge separate fees for drawing up a will and for the cost of administering your estate once you have died. It is a good idea for anyone proposing to make a will to get quotes for preparing the will and for administrating it, so that they get an idea of the total cost.

Before your first meeting, you may be given a checklist asking for complete information about your personal relationships and all the property you own. Completing the checklist as fully as possible will help keep costs down.

If you make your own will, the cost may be just the price of buying a do-it-yourself kit. However, as noted above, home-made wills are often open to being challenged, and this may mean that, in the end, the will does not do what you wanted. A legal challenge can cost thousands of dollars and take months or years to resolve (see above, “Do you need a lawyer to make a will?”).

How are children provided for in a will?

A will can provide for children by establishing a trust. For example, a will can provide that when a child reaches the age of majority (18 years), or any other age, they are to be paid a certain amount. Until then, the trustee is to invest the money and hold it on the child’s behalf.

A trustee may pay up to 50 percent of the amount towards the child’s living and education costs before the child reaches the age where they are to be paid their entitlement. The will can also specifically say that more than 50 percent can be used for this.

Trustee Act 1956, s 41

A will can also be used to appoint a testamentary guardian. A testamentary guardian is someone named by a parent in their will who becomes a child’s guardian (jointly with any other guardians) on the parent’s death. However, the appointment of a testamentary guardian can be challenged by the surviving parent or guardian (see the chapter “Parents, guardians and caregivers”).

Who holds my will until I die?

If a lawyer or trust company has been involved in preparing your will, they will usually hold the will free of charge. You should be given a copy, which you should keep with your personal records. This copy should clearly indicate who holds the signed will.

You can choose to hold your own original will. If you keep the original, it should be kept in a safe place. There is no national register of executed wills, so it is important to tell a close relative or one or two close friends where you keep it.

How do I make sure my partner is provided for while they’re waiting for approval of my will?

After you die, your executor will normally have to apply to the High Court to get the will formally approved (this is called “getting probate”). There could also be other delays before the property is finally distributed to the beneficiaries you’ve named in your will. It’s therefore a good idea for you and your partner to plan ahead to make sure your partner will have an income during this time, if they don’t have their own income or have been financially dependent on you.

One way to do this is to have at least one joint bank account together. Any property (including money) that is owned jointly passes, when one joint owner dies, to the surviving joint owner. This means that all the money in the joint account will immediately belong to your partner when you die.

However, if your estate is a small one, it won’t be necessary to go to court for probate. For example, your bank will be able to pay your money out to your executor or relatives, without the need for probate, if the total in your accounts with the bank is less than $15,000. So if you’ve got more than $15,000 with your bank, you may want to think about opening an account with a second bank and splitting your money between the two banks. This will bring you under the “small estate” rules, and your executor or family will be able to get access to the money quickly, without having to spend money from your estate on going to the High Court for probate. For more about getting probate and the small estate rules, see the chapter “A death in the family”, under “Dealing with the deceased’s property”.