What is a Will?

A Will is a legal document which is formed by you and dictates the distribution of your estate after you pass away. It can also express your wishes for what happens to your body after you pass away, and who will look after any dependents you have. The aim of a Will is to follow your wishes after you pass away rather than have your belongings redistributed without your input. The best way to write a Will is to see a lawyer or Public Trust who can ensure the Will is legal and binding. Your Will should be stored with your lawyer or trustee corporation, and you should have a copy. You should also tell your executors (the person/people named in your will to carry out the terms of your Will) where your Will is held to make it easier for them to find when you pass away.

Why do you need a Will?

If you pass away and do not have a Will, your property and belongings are distributed according to the Administration Act 1969. This means that you will not get a say in who gets what. The Act distributes percentages of your estate to family and partners based on relations rather than the needs of your loved ones, which means they may not get what you wanted to give them. It can also be a lengthy and expensive process to distribute your estate without a Will. The best way to take care of your loved ones and your estate is to write a Will outlining your preferences.

What should be included in a Will?

Your Will should outline who you want to receive parts of your estate and how big those parts are. The size of your estate does not matter, and you should include all your property and belongings that you know you would like to go to specific people, including jewellery, artwork, furniture, property, cash payments, and pets. Your estate will first be used to pay off any debts that you owe before being distributed as you request. You may also choose to leave a donation to a charity or organisation of your choice, called a bequest. Your Will can also include details of how you would like your funeral to be carried out and how you want your body to be handled. You need to include who will be the executor and trustee of your Will. This needs to be a person you trust as they will be responsible for overseeing that your wishes are carried out and your estate is properly distributed. Executors and trustees can be the same person, or they can be different and share the responsibility. Your executor and trustee can be a trusted person or a lawyer. You may choose to allocate funds from your estate to pay for the executor and trustee to complete these tasks because it can be a lengthy and difficult job. You can read more about what to include in your Will here.

How do you write a Will?

Wills can be written independently by yourself, but there may be issues with this if it is not written clearly, if it is not witnessed properly, or if there are other reasons it may be challenged by beneficiaries. Most people use a lawyer or Public Trust to write a Will. A professionally written Will is less likely to be challenged and will be professionally managed to ensure the Will is legally valid. A small fee may be charged for the work put into writing your Will, but this may save you large expenses after you pass. You can contact your lawyer or Public Trust to discuss writing a Will.

Updating your Will

Your Will should be updated after major life events or at regular intervals such as every five years. If you get married, enter a civil union, enter a de facto relationship, get divorced, or end a relationship, you should review your Will to make sure your estate is going to the people you want it to. Other circumstances where you should review your Will could include having children, a major change in the value of your estate such as buying a house, or if any trustee or beneficiary dies. Wills should also be reviewed if the law changes; to make sure it is still valid and whether it could likely be challenged under any of the new laws.
It is important to update your Will to make sure that it stays valid. Your Will may be invalidated if you enter or end a relationship without updating it in your Will, if it is not signed or witnessed properly, if the writing is ambiguous or uncertain, or if an argument can be made that you were influenced to dispose of your property in a certain way.

Contesting a Will

A Will may be contested if:

  • Its validity may be questioned
  • An immediate family member believes that the Will maker has not made adequate provisions to support them
  • A surviving partner wants to claim their share of relationship property instead of the terms of the Will
  • There are other challenges relating to New Zealand law

You can read about challenging a Will here.

Websites of interest