A Guide to Wills
What is a will?
A will is an important legal document that expresses a person’s (willmaker) wishes for such things as how they would like their body to be dealt with, how they wish their property to be distributed and to whom when they pass away. It does not take effect until the willmaker dies, unlike an Enduring power of Attorney document which comes into effect when the subject is still alive (see ‘Enduring Powers of Attorney’). Wills are extremely important to have in place and must be made whilst you are still competent to be valid. Although laws made be made without professional assistance, the law surrounding the validity of wills and how they must be made is strict. It is therefore highly recommended that you have your lawyer draw one up. Saunders & Co has experienced lawyers and legal executives who can assist you with planning and drafting you will to best ensure your wishes are upheld later on.
Below is information on who can make a will, the legal requirements of making one, why it is so important to have one made and with a lawyer’s assistance. Common definitions are also contained at the end of the article.
Who can make a will?
Generally, a person may make a will where they are:
- 18 years old or over and
- Competent/ of sound mind such that they understand the effect of what they are doing.
However, people who are of sound mind but are under 18 years old may make a will if:
- They are married, have been married, are in a civil union or a de facto relationship
- The will is made in contemplation of entering into a marriage or civil union (here, the will becomes valid once the marriage or civil union actually occurs);
- They are in New Zealand’s Armed Forces or are about to join or start training for the Forces, and at the time of making the will, they are engaged in war, are a prisoner of war, or are at sea;
- They are a seafarer at sea.
Why make a will?
Whilst it is not a legal requirement that every person should have a will, having one and one that is up-to-date is extremely important for ensuring that you get to better dictate what happens to your possessions, your body, and your dependants when you die. Without one, the law will dictate what happens to what and to whom which may well be not what you would have intended. (See the section on ‘Intestacy’).
Things to think about before making a will
- A new will revokes any previous will.
- Appointment of 2 x executors and trustees.
- Appointment of 2 x guardians.
- Burial or cremation and any directions as to where ashes or body will go or for funeral. Non-binding.
- Donation of body parts – good to tell family.
- What assets do you own?
- Who might you owe obligations to like ex-partners, siblings, children and other family members.
- Gifts (jewellery, furniture, vehicles, and artworks).
- Residuary estate – who will take, in what proportions, and why.
- What happens if the first in line die? Will their share of your estate go to their children or to the surviving beneficiaries in equal shares? What if they all die before you?
Legal requirements for wills
The Wills Act 2007 contains many legal requirements for a will to be valid.
A will must be:
- In writing;
- Signed at the end by the willmaker and two witnesses who were all present when each signed;
- Intended by the willmaker to be a will;
- Executed when the willmaker still has legal capacity (see definitions).
The willmaker and witnesses should also initial the bottom corner of each page to show that everything in the will has been approved of and no new pages have been inserted.
If a will is found not to meet these requirements, the High Court may still deem the will valid if they are satisfied that the document expresses the intentions of the willmaker.
A witness must be 18 years old or over, and must be independent of the will. They do not even have to be known by the willmaker and do not need to know the substance of the will – just that they have seen the willmaker sign it.
A beneficiary under the will should not also be a witness. If assets are left to the witness or even their spouse/ civil union partner/ de facto partner, none of them will be able to receive any gifts under the will as it raises the suspicion that they influenced the willmaker. Exceptions do exist where:
- The will has at least 2 other witnesses who are not also beneficiaries or the spouse/ civil union partner/ de facto partner of a beneficiary; or
- The gift is a repayment of a debt; or
- The High Court is satisfied that the willmaker knew of and made the gift to the witness/beneficiary voluntarily.
As can be seen from this brief description of the many requirements for a will to be held as valid, it is vital that the will be created carefully and preferably drafted, or at least checked, by a lawyer.
Why is it important to involve a lawyer?
Many people may be tempted to draft their own Wills or use a DIY will kit, thinking that they do not need to engage a lawyer and save on legal fees. However, although these may be helpful in getting a Will drafted, not all of them will ensure that you fully comply with the legalities or make you think of all the possible future consequences of your decisions. You may save yourself and your family from unnecessary grief and a lot more money in the long run by having a lawyer advise you on your will.
- Making a Will is not as simple as writing your wishes on a scrap of paper and signing at the bottom. There are many legal requirements (regarding who can be a witness and where signatures must go, for example) that must be met in order to create a valid Will. A lawyer will ensure that all the legalities are met and that your wishes are written clearly so that there is no reason for your Will to be made invalid in court.
- Why is it so important that your will stand up in court? Because if it does not, or there are ambiguities in your Will, the courts may decide to distribute your estate in a different way to how you wanted. Isn’t one of the main purposes of a Will to ensure that YOUR wishes for YOUR possessions are carried out?
- Having your Will made invalid in court is also problematic because it could then result in your family arguing over your estate and you will not be there to specify what you want to go to whom. Having a purposeful and valid Will that clearly states who should get what better prevents such conflicts.
- Again, a lawyer can also advise you of what obligations you have under other legislation (such as family protection law) or what potential issues may arise with your Will that you may never have known existed. Being mindful of these obligations when you make your Will may better ensure that your Will is upheld by the courts.
Often the lawyer who made your will will hold the original for you in a safe place, also storing a copy in your file or on their computer system, and giving a copy to you to store safely. If you hold your own will, you should keep it in a very safe place, make copies, and tell a few trusted relatives or friends where it is being kept.
If you want to make your first will or create a new one, have a chat to one of our experienced team here at Saunders & Co using the contact details on our website.
Wills – Common terms
Administrator – a personal representative appointed by the court where a person dies intestate (like an executor).
Assets – property such as land, buildings chattels and personal items.
Beneficiary – those named under the will who stand to benefit/ inherit under the will.
Bequest – property other than money that is disposed of under a will.
Codicil – a supplementary will made after the initial will has been signed that is added on.
Executor – the executors act as the initial ‘managers’ of the deceased willmaker’s affairs in ensuring that the willmaker’s wishes are carried out, attending to collecting in of the estate assets, paying off debts, and attending to funeral arrangements. The executor owes fiduciary duties to the estate and beneficiaries and so must act in good faith and in a timely manner.
Grant of Probate – an order from the High Court that states that a will is valid. It also gives the executors the authority to then deal with the estate.
Intestate – where a person dies leaving no will or no valid will. The Laws of Intestacy then apply and determine how and to whom the intestate property is to go to.
Legacy – money disposed of under a will.
Legal capacity – “a person’s capability and power under law to engage in a particular undertaking or transaction” which must be determined medically if in doubt. The person must be capable of understanding the implications of what that are doing.This is extremely important as if the capacity is not deemed to be present at the time of making the will, the will may be held as invalid.
Letters of Administration – used where a person dies intestate (without leaving a will). It is a High Court order that gives an administrator the authority to manage the estate.
Testamentary guardian – a person named in a will who is to become a guardian of the deceased’s child/ren. They will be a guardian with atleast one other guardian. (The appointment may be challenged by the surviving parent of guardian though).
Trustee – trustees administer the trusts arising from the will and must discharge their duties for the benefit of the beneficiaries named under the will. Trustees owe onerous duties under various statutes, including the Trustee Act 1956 and must be trusted persons by the willmaker to act carefully and for the best interests of the beneficiaries.
Willmaker – the person who makes a will. Also known as a testator or testatrix.