This range of New Zealand Wills provide for various situations (number of children, spouse) and a document check list.
How to make a will
There are many good reasons for making a will. A will records who you (the "testator") wish to benefit from your estate (that is, your assets). You can provide for people - such as friends - who would not be entitled to anything from your estate if you died without a will.
If you die without a will (called dying "intestate"), the law dictates who will receive your assets after you die: see How to deal with a relative dying without a will.
The most important things to provide for in your will are who will be your executors, and who will be the beneficiaries of your assets.
In making your will, you should consider any future children you may have, and provide for them in your will. You should also consider how you would like your property to be distributed should your spouse or partner die at the same time as you.
It is also possible in a will to forgive any debts owed to you.
Aside from these matters, wills commonly provide for such things as:
You should consider who you want to be the executor of your will (the person that your will appoints to manage and distribute your estate). The executors will be in charge of carrying out your wishes, so they should be responsible and trustworthy.
It is preferable that you appoint two people to be executors, in case one of them dies before you do.
To be legally valid, a will must be:
The two witnesses should preferably be at least 20 years old.
Witnesses cannot be beneficiaries under the will, and nor can the spouse or civil union or de facto partner of a witness. If they are beneficiaries, this does not make the will invalid, but they are not entitled to receive anything under the will.
The will need not be drafted by a lawyer. Printed forms for drawing up your own will are available from major stationery stores.
However, the cost of getting a lawyer to draw up your will are relatively small. Further, if the will is relatively straightforward, some law firms may not charge for this service. In any event, even a small charge would be cheap compared to the problems that can arise if a will is badly drafted and therefore unclear, or if the will is invalid because it has not been signed and witnessed properly.
A will must be in writing: a spoken will is not binding. However, if you promise to provide for someone in your will in return for services that he or she has performed for you (for example, looking after you while you were sick), that person may bring a claim against your estate under the LAW REFORM TESTAMENTARY (PROMISES) ACT 1949. For more details, see How to contest a will.
Yes, you can do this either by making a new will or by adding a "codicil" (an amendment) to the will: see How to change a will.
Assuming your will can't be challenged as being legally invalid (that is, it was properly witnessed and so on), it may still be able to be challenged after your death by:
These are explained in detail in How to contest a will.
If you are concerned about whether your children will benefit under your will if you leave everything to your spouse, you can establish a family trust in your will to ensure that your children's needs will be met (see How to establish a trust).
Buying a unit in a retirement village is significantly different from buying a freehold home, and there are a number of specific questions you will need to consider. As well as finding out as much as you can about the village and its reputation from its staff and residents, you will also need to consider the type of ownership it is offering, which may be, for example, an occupation licence or a unit title (see below for the different types of ownership).
In choosing a village you should start by visiting the villages in your area. As well as meeting with the managers and nursing staff, talk with as many of the residents as possible about how they find the staff and facilities, the standard of care, the standard of maintenance of the units and common facilities, and other issues.
As well as generally feeling comfortable with the village and its facilities, you should make sure you address a number of important specific questions:
You should obtain the documents for the legal ownership of any of the properties in which you are interested. Usually the main document will be an occupation licence (see below).
The Consumers' Institute provides a comprehensive checklist for choosing a retirement village unit on its website at www.consumer.org.nz/other/retirecheck.html or check the Ministry of Economic Development's companies office online.
The Retirement Villages Act 2003 introduces new rights and protections for residents, and intending residents, of retirement villages. It also introduces new responsibilities for operators of retirement village so that residents have a clear understanding of the financial and other obligations of being a resident, and to ensure and residents receive what they were promised or are entitled to. Before intending residents agree to enter into any agreement to occupy a unit in a retirement village, the person making the offer will need to provide the intending resident with an Occupation Rights Agreement and this must include a cooling-off clause.
From 1 May 2007 you are now able to search Retirement Villages registered under the Retirement Villages Act 2003 online at www.retirementvillages.govt.nz.
There are a number of different types of ownership agreements for retirement village units, and you will need to consider the advantages and disadvantages of each form. The main forms of ownership agreement include the following:
If you believe that you have not received a sufficient benefit under a will and you fit certain criteria, you may be able to challenge the will.
There are several different ways in which you may be able to do this:
The immediate effect when you notify the court that you intend to challenge a will is that the executor or trustee under the will (that is, whoever is responsible for distributing the deceased person's estate to the beneficiaries) must not make any distributions from the estate, apart from debts, expenses and funeral costs.
Under the FAMILY PROTECTION ACT 1955 you may apply to the Family Court or High Court to be provided for out of the deceased's estate if you are the deceased's:
The court will uphold your claim if it believes that the deceased failed to fulfil his or her moral duty to provide adequately for the maintenance and support of family members.
In making its decision the court will balance this moral duty against the principle that a testator should be able to decide what is to happen to his or her property.
Since 1 February 2002, a de facto partner (including a same-sex partner) who was living with the deceased when he or she died has had the right to apply under the Family Protection Act. However, if the relationship was for less than three years, the court cannot make an order in favour of the de facto partner unless the court is satisfied that
Those restrictions applying to de facto partners do not also apply to civil union partners.
Even if you are not a close relative, you may be able to bring a claim under the LAW REFORM (TESTAMENTARY PROMISES) ACT 1949. This covers situations where you have worked for or given some other service to the deceased, who in return promised to leave you something under the will.
You will need to provide satisfactory proof of the promise, and this can sometimes be difficult. Evidence can be oral or written â€“ for example, letters.
To justify a claim it is not necessary for the promise to have been made before you provided the work or services.
Under the PROPERTY (RELATIONSHIPS) ACT 1976, the legal spouse or civil union or de facto partner (including a same-sex partner) of a deceased person has the right to choose between either -
For the division of property, see How to: The division of property when a marriage, civil union or de facto relationship ends.
Applying under the Act does not prevent the spouse or partner from also applying under the Family Protection Act or the Law Reform (Testamentary Promises) Act (see above). But presumably if property is divided under the Property (Relationships) Act, this will be relevant to any family protection claim.
You may challenge the legal validity of the will if there is proof that:
If the challenge is successful, then any earlier will takes effect. If there is no earlier will then the deceased is said to have died "intestate" (without leaving a valid will), and the law then dictates how the deceased's assets are distributed (see How to deal with a relative dying without a will).
To change a will you can either:
It is not valid to simply cross out a section of a will if you wish to revoke that section. However, physically tearing up a will can validly revoke it, provided it was your intention to revoke the will; but if no new will is made to take the place of the one destroyed, then what happens to your property will be determined by rules set down by statute (for those rules, see How to deal with a relative dying without a will).
If the changes to be made are major, it would be advisable to make an entirely new will to avoid any confusion (see How to make a will). The first clause will always revoke any old wills, thus making the current one the only enforceable will.
A codicil must be witnessed in the same way as an original will (see How to make a will). That is, the codicil must be:
There a variety of situations in which you may find it appropriate to change your will. For example:
If your will contains any "legacies" (gifts of specific sums of money) these will obviously be reduced over time by inflation, and you may therefore wish to review them. To make sure that they maintain their real value, you can provide in your will for them to be inflation-adjusted. Alternatively, you can provide for the gift to be a set proportion of your net estate (which means that the value of the gift will vary with your own fortunes).
A "bequest" (a gift of a particular item of property) may also become out-dated by changing circumstances. For example, you may have sold a particular item and bought another. In that case, unless the terms of the gift are wide enough, the gift may fail. When a large number of items of relatively small value are involved, it is often better to leave these items to a trusted family member to distribute according to wishes that you make known to that person. You can record those wishes on lists, which can easily be up-dated from time to time.
Bequests of the proceeds of life insurance policies or shares are often a problem. Life insurance policies may mature or be surrendered. Shareholdings will fluctuate in value and companies may be taken over, and it may be that the shares included in your will do not exist when you die. Suitable clauses can be included in your will to cover these possibilities.
You should therefore make sure that any property you own with another person as "tenants in common" is provided for in your will. If you own land, it may be desirable to have your lawyer search the title to the land to ensure that the ownership is in fact as you understand it to be.
In order to obtain probate of a will, the executor of the will must apply to the Registrar of the High Court.
"Probate" is the procedure whereby a will is recognised by the courts as being authentic (the word comes from a Latin word meaning "proof").
It is necessary for the executors of the will to obtain probate from the court so that they have authority to deal with the deceased's assets (and liabilities) and to enable distribution of the estate in accordance with the will.
Probate is carried out by the Registrar of the High Court after receiving an application from the executors. It involves establishing that it was in fact the testator (the maker of the will) who died, that the will was properly signed and attested, and that executors have been appointed. (See also How to make a will.)
In order to obtain probate for a will the executors must apply in writing to the High Court for probate to be granted in their favour.
Except when someone else is contesting the will, the application is made "ex parte", which means it's not necessary to give notice of the application to anyone else. This is called an application for "probate in common form", in contrast to an application for "probate in solemn form", which is where someone is contesting the will: see below, "What if someone is contesting the will?".
An ex parte application must use the general format shown in Form 20 of the High Court Rules (which is in the Second Schedule to the JUDICATURE ACT 1908). Usually applications are made through a lawyer; if you do use a lawyer, he or she must certify that the application is correct.
You must apply to the High Court, rather than the District or Family Court. You must file your application in the High Court registry nearest to where the deceased was living when he or she died or, if the deceased wasn't living in New Zealand, at the registry nearest to where the deceased's property is.
The application must be accompanied by the original will (not a copy) and a sworn affidavit (a statement sworn before a lawyer) by the executors that:
There is a special form for the sworn statement (see Form 51 of the High Court Rules), and this must be followed.
If someone is contesting the will, the process is more complicated and will involve a trial in the High Court. You must apply "in solemn form", which means you file a statement of claim under the standard procedure for civil proceedings in the High Court.
You name as defendants the people who are contesting the will and the people who, if you are unsuccessful, may be entitled to a grant of probate (if they are setting up another will as valid) or letters of administration (if they claim that no valid will exists and that the deceased therefore died "intestate").
The defendants then have the opportunity to file a statement of defence and, if they wish to, a counterclaim.
It is not necessary to apply for probate if the value of the estate, excluding joint assets, is under $11,000. However, if the estate includes the ownership of land or an interest in land, probate will be required regardless of the value of the estate.
Despite the fact that it is not legally necessary, it may nevertheless be advisable to obtain probate for an estate under $11,000 if there is a likelihood of the will being contested.
When a family member dies certain formalities must be dealt with first. These include finding the will, contacting the executors if they are unaware of the death, and then arranging the funeral.
The funeral director will deal with many technical issues and be able to answer most of your questions, therefore you need not worry about formalities that you do not understand. For example, if it is necessary for the body to be sent overseas and for permission to be obtained from health authorities, this will be dealt with by the funeral director.
The executor of the deceased's will has the legal right and obligation to arrange the funeral.
The deceased may have expressed wishes about arrangements for the funeral, either in a will or a letter of last instruction, such as whether he or she wished to be buried or cremated, and whether or not there is to be a religious service. The executor is not legally bound to follow these instructions, but it would be unusual for them not be followed.
Funeral expenses (including any shortfall if the deceased arranged and paid for the funeral in advance) are generally met by the deceased's estate (his or her assets).
If there is no money available for the funeral you should contact Work and Income New Zealand immediately to see if a grant is available for the funeral.
At some point many of us will have to choose a rest home for ourselves or for a loved one. This is an important matter and it is essential that you feel comfortable with your decision.
In order to choose a rest home, you might begin by asking your doctor or your local hospital for recommendations of homes with good reputations.
You should make a thorough inspection of all the homes you visit and ask questions of the staff. As well as generally feeling comfortable with the home and its facilities, you should make sure you address a number of important specific questions.
Some of the main questions you should ask are:
The Consumers' Institute provides a comprehensive checklist for choosing a rest home on its website at www.consumer.org.nz/other/restcheck.aspl.
Once you have chosen a home, you should be aware of your rights as a resident and ensure that they are being met at all times.
These include the right:
If you feel that one of your rights as a rest home resident has been breached, you should first discuss the matter with the manager of the home.
If that does not resolve the matter, you may have grounds to make a complaint to the Health and Disability Commissioner if there has been a breach of the Code of Health and Disability Services Consumers' Rights. You can obtain a copy of the Code by phoning the Commissioner (0800 112 233) or you can read it on-line at the Commissioner's website (www.hdc.org.nz). A complaint to the Commissioner does not have to be in writing.
If the Health and Disability Commissioner does not have jurisdiction to deal with your complaint, you may have other courses of action. For example, if the confidentiality of your personal records has been breached, you may make a complaint to the Privacy Commissioner (phone 0800 803 909).
Growing old is one of life's certainties and may raise a number of important legal issues, particularly questions to do with the care of one's parents or parents-in-law.
You have no legal responsibility to support your parents or parents-in-law. The only situation in which this may occur is where parents or parents-in-law have promised to leave you something in their will in return for supporting them in their old age. If this is the case then a contractual obligation may have arisen and can be enforced.
Specifically, you have no legal responsibility to pay your parents' medical bills.
If an elderly person is over 65 he or she is eligible for New Zealand Superannuation. A person who has not yet reached 65 may possibly claim sickness or other benefits â€“ contact Work and Income New Zealand (WINZ) to ask what they can or cannot claim.
The Government also provides a rest home subsidy (the Residential Care Subsidy), which is subject to asset- and income-testing: see How to apply for a rest home subsidy (Residential Care Subsidy).
Elderly people can live anywhere they choose; their children do not have the power to stop them living in a particular place.
An elderly person cannot be forced to move into a rest-home against his or her wishes, unless the court makes a "personal order" under the PROTECTION OF PERSONAL AND PROPERTY RIGHTS ACT 1988 on the ground that he or she is mentally incapable of dealing with his or her own affairs (see "Personal and property orders" below).
Along with caring for one's elderly parents comes the responsibility of dealing with any business matters that may arise. It may be necessary for the elderly person in question to give you or some other person a power of attorney to deal with his or her affairs (see How to give a power of attorney). You may be given either:
If a parent or parent-in-law becomes mentally incapable but has not previously given anyone an enduring power of attorney to deal with his or her affairs (see above), you can apply to the court for it to make various orders to provide for the person's personal welfare and business affairs.
The orders that may be made include appointing a manager for the person's property affairs, and appointing a welfare guardian to deal with the person's personal care and welfare (see How to obtain a personal or property order for someone who is mentally incapable and How to be a welfare guardian).
When a person dies, the administration and management of his or her estate is carried out by the executor, who is appointed by the deceased person (the "testator") under his or her will. Generally the executor must work out what the deceased owned and the amount of debts the deceased owed.
If the estate has assets of more than $11,000 or includes land, the executor must apply to the court for "probate", which is where the court recognises the will as authentic. Obtaining probate enables the executor to deal with the assets and liabilities of the deceased's estate and to distribute the estate according to the will (see How to apply for probate of a will).
While the use of a professional executor is common, a family member or friend may be appointed. In both situations the executor may be paid and may be a beneficiary under the will. The executor's position is one of trust and he or she must work in the best interests of the beneficiaries of the will.
One of the more difficult parts of an executor's role is to sort out any claims that creditors have on the estate. There is an order of priority that determines which debts are to be paid first.
This order of priority, which is contained in the INSOLVENCY ACT 1967, requires that any administration costs for the estate, funeral expenses, medical expenses and unpaid taxes must be paid out first. After those costs are paid, creditors are paid according to the priorities established under the Act, for which see How to recover debt from a bankrupt.
You may not distribute the estate until all claims have been satisfied or disputes resolved. If you distribute the estate before this you as the executor are personally liable for the debts. To prevent this occurring you should either:
While it is your job to fulfil the deceased's wishes as stated in the will, you may deal with the property in a way that is contrary to the will if all the beneficiaries are adults and they consent to the change.
If the deceased gifted property in the will but no longer owned it when he or she died, the gift has no effect and the beneficiary gets nothing.
If the total amount gifted in legacies (money left in a will) is more than the amount of the estate, the beneficiaries receive their different legacies on a proportional basis.
Yes â€“ you have the choice of accepting or renouncing the position of executor. To renounce the position, you must sign a formal renunciation document, which does not take effect until it is filed in court.
However, you may not renounce the position if you have already shown an intention of accepting it. The most obvious way of showing an intention to accept is by obtaining probate from the court, but the intention may also be shown in other ways.
If a person dies without making a will, he or she is said to have died "intestate". Since there is no will, the deceased person's property is distributed according to rules laid down in the ADMINISTRATION ACT 1969 (see below, "How is the deceased's estate distributed?").
In order for someone to have authority to distribute the deceased's estate, an application must be made to the court for it to grant "letters of administration" for the estate, which means that the court appoints a person, usually a close surviving relative, as the "administrator" of the estate. (By contrast, if there is a will the executor appointed under it applies to the High Court for it to grant "probate" of the will: see How to apply for probate of a will.)
The administrator is the personal representative of the deceased and has authority to deal with and distribute the deceased's estate in accordance with the rules in the ADMINISTRATION ACT 1969. The administrator fills the same role as the executor under a will (see How to be the executor of a will).
You will need to apply in writing to the High Court. Except when someone is contesting the issue, the application is made "ex parte", which means it's not necessary to give notice of the application to anyone else.
The application must use the general format shown in Form 20 of the High Court Rules (which is in the Second Schedule to the JUDICATURE ACT 1908). Usually applications are made through a lawyer; if you do use a lawyer, he or she must certify that the application is correct.
The application must be filed in the High Court registry nearest to where the deceased was living when he or she died or, if the deceased wasn't living in New Zealand, at the registry nearest to where the deceased's property is.
If someone is challenging you being granted letters of administration (for instance, claiming that a valid will exists), the process is more complicated and will involve a trial in the High Court. You must apply "in solemn form", which means you file a statement of claim under the standard procedure for civil proceedings in the High Court.
You name as defendants the people who are contesting the issue and the people who, if you are unsuccessful, may be entitled to a grant of probate (if they are claiming a valid will exists) or letters of administration.
The defendants then have the opportunity to file a statement of defence and, if they wish to, a counterclaim.
There is an order of priority to aid the court in determining who to appoint as administrator -
The ADMINISTRATION ACT 1969 sets out the rules of intestacy, which state who will receive the property. Generally the property goes to family members, as follows -
De facto partners were included in the above provisions on 1 February 2002, but only where the deceased died on or after that date. Further, some de facto partners are not included - see below.
Civil union partners were included in the above provisions on 26 April 2005.
Since 1 February 2002, a de facto partner (including same-sex partners) has had the same rights to receive the deceased's property under the rules of intestacy as has a legal spouse, provided
If the relationship was for less than three years, the de facto partner has no right to receive under the intestacy rules, unless the court is satisfied:
If the deceased dies leaving both -
then those two people share equally in the property that would have gone to a spouse or partner had the deceased left only a spouse or civil union partner or only a de facto partner. The same applies if the deceased leaves two or more de facto partners.
A surviving spouse or civil union or de facto partner is entitled to choose between either -
For the division of property, see How to: The division of property when a marriage, civil union or de facto relationship ends.
A signed statement of instructions to provide only palliative care and not to prolong life in the event of an irrecoverable medical situation where there is no future likelihood of rational existence. Complies with relevant New Zealand legislation.
A Will that provides for specific gifts (if any) then leaves the balance to be divided between named beneficiaries such as nieces and nephews or charities. Complies with relevant New Zealand legislation.
A Will that allows for specific gifts (if any) then leaves the balance to the Will maker's children. If any child has died, then that child's share goes to their children, if any. Complies with relevant New Zealand legislation.
A Will that allows for specific gifts (if any) and then leaves the balance to the Will maker's spouse or partner. If that person has died, then the balance of the estate is divided equally amongst the Will maker's children. Complies with relevant New Zealand legislation.
Essential document to fill out and leave with your New Zealand will. Helps pervent in investigations and legal fees if you should die unexpectedly.
Letter to proposed executor of your will, asking whether he will accept the office on your death. Provides additional basic information he might require now. Complies with relevant New Zealand legislation.
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