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 home
entertainment 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 in
contemplation 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 until
formal 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 to
exclude 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.
HOW OFTEN SHOULD I REVIEW MY WILL?
You should review your will regularly, say, every five years. You should also review it whenever your circumstances change, for example:
if you marry or enter into a civil union or de facto relationship,
when such a relationship ends;
if there is a birth of additional children (or grandchildren in some cases);
if a trustee or significant beneficiary named in the will dies; or
if your assets or debts change significantly.
You should also review your will if the law changes. Some major changes in recent years have affected wills so if you have not already done so, check to see if your will is still valid and if it is likely to be challenged under any of the new laws. If your will has been made since 1 November 2007, it is probably valid under the new laws.
Whether you are wanting to make your first Will or wish to update an existing Will, we are happy to assist you. Our friendly Solicitors will be able to explain everything to you so that you understand the process every step of the way. We will discuss your wishes and will tailor your Will to your specific needs.
To help you start thinking about your Will, download our Will Information Form here.