A Guide To Preparing Or Updating Your Will

Why You Need A Will

A current and valid Will is an important legal document which sets out your final written instructions on your death.

Having a Will that sets out how you want your personal assets to be distributed upon your death gives you the best possible control over what happens to your property.

A valid Will can also reduce the costs and assist with the timely administration of an estate.

What Happens If You Die Without A Will

Dying “intestate” means dying without a valid Will. Should this occur, the Administration Act specifies who can administer your Estate and how your property will be distributed. The outcome may not be what you intended or what is best for your family. It could result in family conflict and your estate incurring more costs if disputes arise.

When To Make Or Update A Will

Now, if you do not have one. 

Every person over the age of 18 years should have a Will.

When you have a Will, a change in circumstances may mean your Will needs to be updated. These changes can include:

• Commencing a relationship or getting married
• Having children
• The death of a family member, beneficiary or Executor
• Ending a relationship (not just when you get divorced)
• Buying a house
• The establishment of a family trust
• Any changes to the named assets in your Will
• A change of guardian for your children
• The addition or removal of beneficiaries

Whenever there is a change in your personal circumstances, consideration should be given as to whether or not your existing Will continues to set out your wishes in the event of your death. It is best to review your Will at least every five years to ensure it meets your current personal circumstances and wishes.

What Should Be Included In A Will?

A well drafted Will provides for:

• The revocation of any previous Will or codicils
• The distribution of your assets. This will include real property (land), personal chattels (jewelry, heirlooms, car, etc) and other assets (superannuation, life insurance, shares, etc)
• The appointment of guardians for any children under 18 years old
•  If you have a family trust, the forgiveness of any debt and the appointment of new or additional trustees
•  Any special gifts to an individual or a charity
•  The appointment of one or more Executor/s also known as Trustee/s. These are the people who will administer your estate ensuring your instructions are carried out. They are often a family member, friend or a trusted professional
• The assets to be held in Trust by the Trustee/s until such time the beneficiaries attain a certain age as stipulated in the Will (if required)
• Funeral requirements. However, it is best to ensure your loved ones know your preferred arrangements just in case the Will is not read until after your funeral
  

Can Anything Invalidate A Will?

Wills, being important legal documents, must conform to certain legal requirements to be valid. It is important your solicitor drafts the Will to ensure your Will is enforceable. The Court can deem a Will invalid for the following reasons:

• Incorrect witnessing or signing of the Will
• A marriage or Civil Union since the Will was made
• There was some undue pressure or influence when making your Will
• You were not of sound mind when you made your Will
• You were under the age of 18 years when you made your Will

When Might A Will Be Challenged?

A Will may be challenged in some specific circumstances, including:

• Where a close relative such as a spouse, child, or grandchild believes they have not been adequately provided for or they have been “written out” of the Will. In this case the relative can apply to the Court under The Family Protection Act 1955 to have the distribution of the Estate changed. The courts have tended to rule that a parent has a moral obligation to make some provision for their children, even adult children who have no financial need.
• The deceased’s surviving spouse or partner wishes to claim their share of relationship property under the Property (Relationships) Act 1976 instead of accepting the terms of the Will.
• Someone alleges under the Law Reform (Testamentary Promises) Act 1949, that the deceased has not fulfilled a promise to reward services or work done for the deceased by a provision in their Will. The claimant will need to prove that the deceased made the promise and that the promise was a reward for past or future services.
  

Allowing For The Guardianship Of Children

A testamentary guardian is someone you appoint to manage your child's/children's finances and make decisions regarding the child's/children's care, education, religion and residence.

Your appointed testamentary guardian does not need to be the person who has physical day to day care of your child/children. Appointing a testamentary guardian ensures that you decide who makes decisions for your child/children until the child reaches 18 years of age.

A testamentary guardian is appointed by Deed or Will. A testamentary guardian is to assume the whole or part of the role of the deceased parent depending on the circumstances.

A testamentary guardian must be at least 20 years old when the parent dies.

When Can An Estate Be Distributed?

If an estate has a value of $15,000 or more an application to the High Court for the Will to be recognised and approved is a necessary part of the estate administration process. This is called, Probating the Will.

Executors may distribute an estate six months following the grant of Probate if all creditors have been paid and it is highly unlikely a claim will be made against the estate.

In certain circumstances Executors may need to wait 12 months to distribute an estate.

Where there is a claim made against the Will or the Court is requested to assist in interpreting the Will, distribution is delayed until the Court has heard and ruled on the case.

If an estate is distributed before the six month period and there is a successful claim against the estate, the Executor may be held personally liable to meet those claims.

Franklin Law can help you with legal advice when making or updating your Will

Don't wait until it's too late to start planning for the future.

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If you need help with legal matters including Wills and Enduring Powers of Attorney, trusts and asset planning, or litigation and mediation, reach out to either our Pukekohe or Papakura offices.

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The information contained in this article is necessarily of a generalised nature and is correct as at October 2024. Specific advice should be sought in relation to any particular situation.