For many of us, making a will is one of those chores that we intend to do one day soon, but just not today. Let’s face it, thinking about certain future death is not fun. However, your will is one of the most important documents you will make. If you delay, you might lose the opportunity to make one at all. Death or serious mental injury can come unexpectedly. Parry Field Lawyers provide legal advice on drafting wills to make sure they are clear and comply with New Zealand law
What is a will?
A Will lets you say how you want your property dealt with when you die. In it you can give instructions about what you want done with your property when you die and how you want your dependants (spouse, de facto partner, children, etc) to be looked after.
Making a will can reduce the financial and emotional stress on your family after your death and help reduce the chance of disputes over your estate.
What happens if I don’t have a will?
Estates can be administered without a Will, but it is more complicated, slower and more expensive. In New Zealand, without a Will, your assets will be divided up under the Administration Act 1969. Usually this will not match with what you would have chosen.
For example, if you are married or in a de facto relationship and have children, part of your estate will go to your spouse and part will go to your children. Many people would prefer to have the whole of their estate pass to their spouse to ensure the spouse is properly provided for on their death.
If you want specific personal items such as jewellry to go to specific people after you die, that will not happen if you haven’t made a Will.
How do I make a will?
Anyone of sound mind who is at least 18 years old can make a Will. In addition, those under 18 may make a Will if married or in a civil union or de facto relationship or if they are in the military or are seagoing. Others under the age of 18 must get Family Court approval to make a will.
Because of the importance of your Will, the law requires that it be made in a specified manner, so you should get legal advice about how to make your will. If you don’t comply with the law, your Will – or parts of it – may be invalid.
Making a Will can be straightforward with the help of a lawyer. Clarity is important. A Will need not be long or complicated, but it must be CLEAR. One of the main benefits your lawyer brings is making sure that the wording of your Will has the effect you want it to have. Involving your lawyer gives you the benefit of their expertise and advice on wills (as well as on property, enduring powers of attorney and relationship property where necessary). A lawyer can also:
- suggest how to best and most fairly provide for your family;
- tell you about alternatives you must consider (including who may challenge your will and why);
- advise on the appointment of suitable executors;
- advise on and form trusts for your beneficiaries;
- explain extra powers available to your executors andtrustees that you might want to include in your will; and
When should I make a Will?
Now! Even if you have few assets now, things can change quickly and your assets can build up quickly. Your assets would also include any life insurance policies you own and any household items.
You should also revise your will if you plan to marry or enter a civil union. If you marry or enter a civil union, any will made before that is automatically revoked unless it was made in contemplation of that marriage or civil union. If you separate from your spouse or civil union partner with the intention of ending the marriage or civil union, provisions in your will relating to your spouse or partner will remain valid until the marriage or civil union is legally dissolved (that is, you are divorced). These rule does not apply to de facto relationships, so if you want to provide for a de facto partner or change the provision you have made for them in a previous will you need to specifically prepare a will that provides for that.
How often should I review my will?
You should review your will regularly, say, every five years. You should also review it whenever your circumstances change – if you marry or enter into a civil union or de facto relationship, or when such a relationship ends; if any beneficiary or trustee named in the will dies; or if your assets change significantly.
The Wills Act 2007 came into force on 1 November 2007. It applies to the wills of people who die on or after 1 November 2007, but the changes it makes as to how a will is made affect only wills made after that date. However, there are powers in the Wills Act 2007 to better apply your wishes. If you want your existing will to take advantage of those changes, you need to make a new will.