MAKING A WILL
Your will contains your instructions about what you want done with your property when you die and how you want your dependants (spouse, civil union partner, de facto partner, children, etc) to be looked after. As far as you and your family are concerned, your will could be the most important paper you ever sign. A will can relieve financial and emotional strain on your family after your death and help minimise the likelihood of dispute about your estate. Remember, it is not just money you have to think of, but all your possessions and debts.
WHO CAN MAKE A WILL?
Anyone of sound mind who is at least 18 years old can make a will. A person under 18 may make a will if they are (or have been) married or in a civil union or de facto relationship. Others under the age of 18 can make a will if given approval by the Family Court or if they are in the military or are a seagoing person.
WHEN SHOULD I MAKE A WILL?
You should start thinking about creating a Will as soon as you can. Even if you don’t think you own major assets, you can quite quickly build up possessions that can have monetary or sentimental value to you and to others. You may have some money in a savings account, a car, furniture and household items, a good stereo or homeentertainment system, a life insurance policy, a KiwiSaver account, some jewellery and so on. A will allows you to decide what will go to whom, even if your possessions have sentimental rather than financial value.
Entering into a relationship:
In particular, you should make a will when you marry or enter into a civil union or de facto relationship, or when you have children. If you marry or enter a civil union, any will made before that is automatically revoked unless it was made incontemplation of that particular marriage or civil union (which is best explicitly stated in the will itself). This applies even if you marry or enter into a civil union with someone who is a beneficiary under your existing will.
Ending a relationship:
You should revise your will if a relationship ends. If you separate from your spouse or civil union partner with the intention of ending the marriage or civil union, provisions in your will relating to your spouse or partner will remain valid untilformal separation orders are made by the court or the marriage or civil union is legally dissolved (that is, you are “divorced”). A separation agreement or relationship property agreement does not revoke your will. So you will have to change your will if you want toexclude your spouse or partner before a separation or dissolution order is made.
When you separate legally or “divorce”
Any provisions made for your ex-spouse or civil union partner will be void unless you, as the will-maker, have made it clear in your will that you want them to remain valid.
De facto relationship:
The situation is different for de facto partners. Entering a de facto relationship does not revoke an earlier will. This means an existing will benefiting someone other than your current partner remains valid and may disadvantage your current partner.
CAN I CANCEL OR CHANGE MY WILL?
You can revoke (cancel) your will at any time (while you are still of sound mind) by:
making a new will;declaring in writing (similar to making a will) that you revoke your existing will writing a codicil to change or add to your existing will;
destroying your will with the intention of revoking it;
otherwise showing an intention to revoke it (but that can cause problems if there are photocopies available and people don’t know you have revoked it).
When you make a new will, you should start by inserting a clause revoking any previous will. It is a good idea to tell anyone holding a previous will that it is no longer current. You should also consider advising any previous executors and trustees if they have been replaced (though that is not legally necessary). If you do want to change a part of your will without making a new one you should consult with a lawyer to discuss the consequences those changes might have on other provisions in your will.
WHY SHOULD I SEE A LAWYER?
Though you choose what to say in a will, the law specifies how you should say it.
If you do not comply with the law, your will – or parts of it – may be invalid.
A lawyer can:
suggest how you can best and most fairly provide for your family and dependents;
express your wishes so they have the legal effect you intend, and ensure your will is properly drawn up and valid;
tell you about alternatives you must consider (including who may challenge your will and why – this can be a complex area of law);
advise on the appointment of suitable executors;
advise on and form trusts for your beneficiaries;
explain how relationships might affect your will;
explain extra powers available to your executors and trustees that you might want to include in your will and advise on the appointment of suitable people to take on these roles.
When you come and see us, bring with you:
a list of your assets and debts;
a list of the names of people and charities to whom you want to leave things;
any digital information and passwords or the whereabouts of this information;
a list of questions you want to ask; and
any trust deed or relationship property agreement you have made.