How to make a will in NZ

Making a will in New Zealand can be simple and inexpensive – but it’s important to get it right. Here’s everything you need to know about executors, witnesses, DIY wills and more.

Do I need a will?

Wills aren’t just for those who have a lot of assets. Every adult should have a will – yet only 50% of New Zealanders do.

If you die without a will, the law is inflexible about what happens to your possessions (see What happens if I die without a will?). A will can also help you leave a legacy for your loved ones to remember you by.

Some of us may fear the bills that result, but making a will can be relatively inexpensive. The expensive bit can be the will’s administration after your death: these costs come out of your estate and vary depending on who administers the will.

Can I make a will without a lawyer?

You’re legally entitled to make a will yourself, which will cost you nothing. A DIY job may be fine if your assets are modest and your family relationships orderly. But if not, you may need to seek legal advice.

There are potential downsides to DIY. Experts say home-made wills may create problems if the will-maker’s intentions aren’t clear. Simple errors – for example, if the will is not signed or witnessed properly – can also create grounds for challenge.

If you make a will yourself, there are certain things you must include (See What should my will include?).

How much does a professional will cost?

Most people use a law firm or Public Trust to draw up their will. This doesn’t mean the will can’t be challenged, but using a professional should help to ensure the will is legally valid.

The cost will depend on how complicated your will is. Public Trust charges between $69 (for a basic online will) and $750 (for a more detailed in-person will) for individuals.

Some law firms may prepare a will for free if you’re doing other business with them. However, they may expect to be named as the executor.

What should my will include?

A will should state the following:

• that it’s your last will and revokes all previous wills

• how you want your estate distributed

• who will be your executor

• who will be the legal guardian(s) of children under 18 if you and your partner are dead

• anything else that’s important to you (such as instructions for your funeral).

Your will must be written and dated. You must sign it in the presence of two witnesses who also sign it. They should state they are doing so in your presence and in the presence of each other. Neither the witnesses nor their partners should be beneficiaries of the will.

Use plain English. If a lawyer tries to foist a will on you that you can’t understand, insist on a rewrite.

Never physically attach anything to your will (for example, with a paperclip or stapler). The attachment may leave marks, and the court may be concerned that these marks indicate there were other instructions forming part of the will (called a codicil).

Review your will regularly and update it whenever your circumstances change. Keep the original signed copy somewhere secure and easy to find, and tell your executor where it is.

Who should be my executor?

The executor is the person responsible for carrying out your instructions and distributing your estate’s assets after you die.

You can choose anyone to be your executor. The person doesn’t have to be a lawyer: they can be a family member or friend. It’s common for people to name a friend or relative and a professional as co-executors (they’ll administer the estate together).

There can be advantages in naming a legal expert as an executor because they can deal with legal matters. Probate (authorisation to administer your estate) will usually need to be obtained from the High Court. Your legal expert can also deal with the transfer of any property.

How much do executors charge?

Friend or family

If you name a friend or family member as executor, they may be willing to do the job for free. But there are still likely to be some costs that have to be met, such as High Court fees for applying for probate. You can specify that these costs are to be met by your estate.

Trustee company

If you choose a trustee company as the executor, it will charge for time plus disbursements such as court filing fees, photocopying and postage. By law, trustee companies are limited to charging a maximum fee of 5 percent of the gross value of your estate.

Lawyer

Like trustee companies, lawyers’ fees for estate administration can be based on an hourly rate, a task-based rate, a percentage of the gross value of the estate or some combination of these methods.

Before you sign up, you’re entitled to ask what the lawyer’s fees are likely to be and the scope of the work that will be undertaken. Lawyers must provide you with information in advance about the basis for their charges.

Can my will be challenged?

Writing a will won’t give you freedom to do whatever you want. Wills can be challenged, and this is fairly common. Below are some scenarios where people may successfully challenge your will.

You haven’t made adequate provision for family

The Family Protection Act says you have a moral duty to provide for close family members in your will. If you don’t, they have a right to contest the will because you haven’t made adequate provision for them. Cutting a close family member from your will is extremely difficult to do, if they choose to challenge it.

You’ve promised someone part of your estate

The Law Reform (Testamentary) Promises Act says if you’ve promised someone a reward for their services in your will and don’t keep that promise, they can contest the will. Say you hire a caregiver and tell her you can’t afford to pay her much, but you’ll see her right in your will. If you don’t keep that promise, she may challenge the will.

You haven’t provided for your partner

If you’ve been in a relationship for 3 years or more, the Property (Relationships) Act says your partner is entitled to half your relationship property if you separate or die. This applies to married, civil union and de facto couples. You can “contract out” by making an agreement with your partner. If you die, your partner has 6 months to either accept what you leave them in your will or claim their share under the Act.

You haven’t provided for stepchildren

Stepchildren generally only have the right to make a claim if you were maintaining them immediately before your death – that is, if they were financially dependent on you.

Stepchildren may also have a claim if you’ve promised them provision in your will (see above).

Is it worth making a living will?

A living will, also called an “advance directive”, states what medical care you should be given if you become physically or mentally unable to decide for yourself.

It could be worth making a living will saying you should or shouldn’t be resuscitated or whether you want life support turned off in certain circumstances. Medical professionals can’t ignore an advance directive unless there are reasonable grounds to doubt its validity.

The Health and Disability Commissioner says validity revolves around whether you:

• were competent to make the particular decision

• made the decision free from undue influence

• were sufficiently informed to make the decision

• intended the directive to apply to the specific circumstances.

What happens to my bank accounts after I die?

The Banking Ombudsman has published a guide explaining what happens to a deceased customer’s bank accounts. There is certain information people must provide, and processes banks must follow.

First, the bank will need to be told of the customer’s death by relatives, friends or a lawyer. The bank might request a copy of the death certificate.

The bank then normally freezes the deceased customer’s accounts. Joint accounts will usually be transferred into the remaining account holder’s name.

The bank can then only take instructions from someone authorised to act on behalf of the deceased’s estate. This usually involves obtaining probate or letters of administration from the High Court so the executors or administrators can deal with the deceased’s property.

Once the bank knows it is dealing with an authorised person it can transfer the money to an “estate account” that the executors or administrators set up. This estate account is then used to distribute funds, such as money gifted in the will.

Unless you’re the authorised person, you can’t find out the balance of a dead person’s accounts. Even after death, banks still have a duty of confidence to their customer.

They can’t give information about the customer’s accounts to anyone who isn’t legally entitled to it – even next of kin or estate beneficiaries.

What happens if I die without a will?

Where there’s no will – called dying intestate – your estate will be divided up according to the Administration Act:

• Your spouse or de facto partner (someone you lived with as a couple) gets your personal chattels, the first $155,000 of the estate and one-third of the rest. The other two-thirds goes to your children.

• If you have no children, your partner gets the personal chattels, the first $155,000 and two-thirds of the rest. Your parents get the other third. Your partner gets the lot if your parents are deceased.

• If you have children but no partner, the entire estate is left to the children equally.

• If you have no partner or children, your parents inherit. If your parents are deceased, the entire estate is left to your siblings, uncles or aunts or to the Crown if no relatives exist.

Where to find more information

Community Law Centres

For free legal advice on certain issues, visit a Community Law Centre.

Public Trust

For more advice on drafting a will, visit Public Trust.

New Zealand Law Society

To get help finding a will, visit the New Zealand Law Society.

Banking Ombudsman Scheme

For more information about what happens to bank accounts and money after someone dies, visit the Banking Ombudsman Scheme.