Wills are one of the most important legal documents for almost every New Zealander. The threshold at which a Will is required has recently increased to $40,000.00. Notwithstanding this, they are still incredibly valuable regardless of the quantum of your assets. They give you the opportunity to direct who should receive your assets after you die. Failing to have a Will, or a valid Will, can lead to unintended consequences which could disrupt your plans for your assets and cause headaches for the loved ones you leave behind. Small mistakes in Wills can have big impacts for Estates.
Many people seek to draft their Wills themselves in the interests of saving money, time, and effort. There is no legal requirement to have your Will drafted by a lawyer in New Zealand. However, there are a strict set of rules around what constitutes a valid Will in New Zealand and failing to follow those rules can leave you with an invalid Will, incapable of being validated, and therefore intestate. At that point you are left to the mercy of the arbitrary provisions of the Administration Act 1969.
Requirements For A Valid Will
The requirements for a valid Will can be found in the Wills Act 2007.
- The will maker must be over 18.
- It must be in writing.
- Signed by the will maker and two witnesses who must also initial at the foot of each page.
- Witnesses must be independent people over the age of 18 and should preferably be people who you think will survive you so that they can be called on to confirm the validity of your wishes if required.
- The High Court can admit an informal document, but this is costly, uncertain, and to be avoided if at all possible.
While there are some curious examples of documents that have been successfully validated as Wills, such as a tractor fender and an eggshell, failing to meet the requirements above can leave your Estate in doubt and the cost of proving the Will is valid can reduce the amount available to the beneficiaries of your Estate.
Common Pitfalls
DIY Wills have a range of common failings.
- Witnessing errors.
- Ambiguous language.
- Failure to account for jointly held property which transmits by survivorship.
- No residuary clause/catch all, meaning anything not specifically itemised in the Will has no clear recipient.
- Outdated – failure to update for major life events such as marriage.
Revocation Trap
There are several life events which automatically revoke or otherwise impact the validity of a Will. Not many people know that a marriage entered into after the date of a Will revokes a Will which was signed before the date of that marriage. The result of this is that people die intestate even if their Will would have been unchanged had it been signed after the date of the marriage.
Conversely, separation and dissolution or divorce does not revoke a Will. A prior spouse may technically retain appointments and a right to benefit if the Will is not updated to reflect the new situation. Wills should be reviewed regularly to make sure that these major life events are taken into account. Every two years is best, but certainly no less often than every five years is wise.
Cost Of Getting It Wrong
The consequence of not having a current valid Will can be dire. They can lead to a dispute between your beneficiaries. This can put pressure on family relationships and ultimately deplete the assets which will-makers have worked hard to accumulate and would much rather see divided between their descendants. All of this can cause delays and force applications to the Court to validate invalid Wills, adding further pressure to an already tumultuous time for families.
When A DIY Option Might Work
For a single person with no dependants who has modest assets, a carefully worded and properly executed Will might work. The risk of an error invalidating the intended Will is still sufficient that seeking advice and doing it right is worth the cost of managing things correctly. They should be regularly reviewed and updated. It needs to keep pace with your life. If you think your DIY Will might cause you problems but you’re not sure, have it reviewed. Get in touch with us and we would be happy to assist.