You should have a will if any of the following applies to you:
- You have more than $15,000 in your Kiwisaver or in your bank accounts.
- You own an asset worth more than $15,000.
- You are the sole owner of land or own land as tenants in common.
- You have dependent children.
- You have powers as a trustee or settlor of a trust.
- You have recently married or entered a civil union. A marriage or civil union revokes prior wills.
- Your assets or debts have significantly changed.
- You want to make sure your loved ones receive the benefit of your property when you die.
Even if you do not have assets of significant value, you may still want a will to gift items of sentimental value or make directions about your funeral and final resting place. Many family disputes have arisen because a loved one has died without a will.
Who can make a will?
Anyone of sound mind who is at least 18 years old can make a will. A person under 18 years may make a will if they are (or have been) married or in a civil union or de-facto relationship.
People under the age of 18 years can make a will if they have court approval, are in the military, or are a seagoing person.
Do I need a lawyer to prepare a will?
The law does not require a will to be prepared by a lawyer. Provided your will complies with the requirements of section 11 of the Wills Act 2007, it will be valid.
However, as a will takes effect when you die, it is prudent to ensure that your will is valid and your final instructions are properly documented. While it is possible to use a homemade or ‘do-it-yourself will kit’ to prepare a simple will, there is a risk that your will may be:
- invalid or challenged on the grounds of invalidity;
- inconsistent with, or overridden by, legislation or the common law;
- illegal or contrary to public policy;
- ineffective in dealing with powers you may have as a settlor or trustee of a family trust.; or
- uncertain and open to challenge due to ambiguous or poor drafting of will terms.
A lawyer can avoid many unintended consequences by preparing a will that is tailor-made to your situation. This is particularly important if you have complex asset structures, own businesses, operate a trust or intend to leave a family member out of your will.
A lawyer can also provide advice on legal matters that you may not be aware of. For example, your spouse or partner’s rights under the Property (Relationships) Act 1976, and potential claims under the Family Protection Act 1955 or Law Reform (Testamentary Promises) Act 1949.
Before preparing your will, a lawyer will ask several questions. They will want to know about your assets and debts, family circumstances, appointment of executors and the beneficiaries you wish to leave a gift in your will.
If a lawyer helps you prepare a will, they will usually store an original copy of the executed will for safekeeping. You can also store an original copy of your will. There is no national register of executed wills in New Zealand. So, it is important to tell your loved ones where your original will is stored.
If you have questions or would like assistance or advice about a will, please get in touch with our experts.