A badly drafted Will can cause problems and lead to family disputes. It is also important to have a valid Will which complies with the legalise of the Will Act 2007. Turner Hopkins will ensure that your Will is valid and can also act as the Executor of your estate.
A Will is a legal document that is specific to you and directs others as to how you would like your assets, personal possessions and estate distributed when you die. It also states who will be responsible for administering your estate. This person is known as the Executor or Trustee of the Will.
Every person over the age of 18 should consider preparing a Will. Even if you don’t have much in the way of assets you may have Kiwisaver contributions which need to be dealt with. Often this money can only be accessed by showing proof of entitlement to the money, i.e. a Will that has been probated or “proven” by the Court. If you do not have a Will, accessing your assets can be a much more expensive process.
For a Will to be valid it must comply with the requirements of the Wills Act 2007. It must be drafted and executed in a certain way. It is vital to get the advice of a lawyer to assist you to ensure that your Will meets these requirements. If you die without a Will or your Will is invalid your personal possessions will be distributed in accordance with the Administration Act 1969. This may result in your assets going to people you may not have wished them to go to. We can help you draft a valid Will that expresses your wishes clearly.
A well-drafted Will provides for:
• The distribution of your assets – this includes real property (i.e. land), personal chattels (e.g. jewellery, heirlooms etc) and other assets (e.g. superannuation funds, shares etc);
• Appointment of testamentary guardians for children who are under 18 years old;
• Dealing with liabilities such as mortgages and debts owed to third parties;
• Special Gifts or Legacies - you may wish to pay money or gift items to certain beneficiaries e.g. a favourite charity;
• Funeral Requirements – clear instructions about how you want your body to be dealt with, organ donation and funeral arrangements;
• If you have a trust and your trust owes you money, your Executors need to know how this is to be dealt with -i.e. is the debt to be called up or forgiven?
• If you are a trustee of a trust and hold a power of appointment, you may need to nominate a person to hold these powers;
• You can also establish a testamentary trust in your Will which is a trust that continues after your death and holds the balance of your estate for the benefit of, say, children or grandchildren.
It’s important to think of everything when drafting a Will. For instance, blended families are becoming more common and if you have children from a previous relationship, you need to consider how you would like the members of your family to be provided for. If you predecease your partner, then the assets you wanted to go to your children could become the relationship property of the new partner if safeguards are not put in place.
There are also moral duties to consider if you have children. If you do not provide for your children at all in your Will, then this can expose your Estate to potential challenge.
Sometimes a Will is not the final word on how your assets are to be dealt with. Read more here (include link to the page on challenging a will).
You should review your Will every five years or when a significant life event happens (for instance entering a new relationship, the birth of a child, separating, purchasing a property or business or going overseas on an extended holiday).
You may also want to consider having a Living Will. This is a separate document to your Will. It is not legally binding, but it provides your family with your wishes in regard to your medical care, medication and resuscitation if you are unable to communicate your wishes and/or make decisions for yourself. A living Will does not take the place of an Enduring Power of Attorney.
Having a well drafted and thought out Will will not only give you peace of mind but can help alleviate the stress on your family during a time of grieving.
For more information about Wills or to discuss your requirements call Samuel Ames, solicitor on 09 486-9579 or email [email protected]
Frequently Asked Questions
It is important to note that a Will may be challenged on the basis of the following:
- Property Relationship Act – where an individual has been in a relationship for at least 3 years (i.e. marriage, civil union and de facto) they are entitled to one half of the 'relationship property' in terms of the Property Relationship Act. However, it is possible to contact out of the Act.
- Family Protection Act – where a person dies and does not adequately provide for their close family members (e.g. children and spouse) a claim can be made under the Family Protection Act and a portion of the estate may be vested in the claimant(s) by virtue of a court order.
- Law Reform Testamentary Promises Act – where a person promises someone that they will receive a bequest under their Will in consideration of them performing services (e.g. domestic duties) they can make a claim under this Act if the Will does not provide for them.
When a person creates their Will they have moral and legal obligations to make adequate provision for certain classes of people such as spouses and children. If you believe that you have not been adequately provided for under a Will an application to the Family Court under the Family Protection Act will be necessary. This is a complex process involving the preparation of a number of documents. Similarly, an application to the Court can be made where you have been promised property under somebody's Will but have been left out of the Will.
You should review your Will every five years or in the event of a major change in your personal and family circumstances.
This document expresses your wishes in regard to medical care, medication and resuscitation for when you are unable to communicate your wishes. It is written in advance and important for the terminally ill to have in place. If you are unlikely to recover, it will generally allow for pain relief but nothing more to prolong your life.
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