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This article is focused on New Zealand law and explains issues from a Common law perspective.
How to change a will within New Zealand
The methods of changing a will
To change a will you can either:
- make a new will, or
- simply add what is called a "codicil" (an amendment) to the existing will
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.
Requirements for a valid codicil
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:
- in writing
- signed by you, the testator
- witnessed by two other people who are with you (the two witnesses must both be present when you sign, and you must also witness each of their signatures; it is usual, though not strictly essential, for the two witnesses to sign in each other's presence)
- intended by you to take effect as a codicil to the will
Common reasons for changing a will
There a variety of situations in which you may find it appropriate to change your will. For example:
- Executors and trustees
This is an area that often requires revision. Since you made the will your executors and trustees may have died, become ill, moved overseas, or for other reasons be unsuitable for the duties involved or be incapable of carrying them out. See How to be an executor of a will.
- Marriage or divorce
If you marry, this automatically revokes any earlier will, unless the will says that it is made in contemplation of the particular marriage. If your marriage is dissolved this does not revoke your will, but any gifts to your ex-spouse are cancelled, and an appointment of your ex-spouse as executor or trustee will be void. Separation does not affect the will, and whether or not you make a new will in that case depends entirely on you.
A variety of changes may have occurred affecting who you would like to be beneficiaries and the needs of existing beneficiaries. A new child may have been born or adopted, or a child that is already a beneficiary under your will may have married. A beneficiary may have died; it may be that you have provided in your will for this, but if not the gift will fail and the amount will fall into the balance (the "residue") of your estate and be paid to whomever is the beneficiary of the residue. (An exception to this is that a gift to a child who dies before you automatically passes to his or her children.)
It may be that the size of your estate has drastically increased or decreased since you made your last will.
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.
- Trusts - It may be that your will established a trust for your children, and that the trust is no longer necessary now that your children are older.
- Potential Family Protection claims - The FAMILY PROTECTION ACT 1955 allows close relatives (a surviving spouse or civil union or de facto partner, and children, grandchildren and parents) to challenge a will and be provided for out of the estate if the maker of the will did not adequately provide for them (see How to contest a will). This kind of court challenge is expensive both for the challengers and for your estate. It might be advisable, therefore, for you to reconsider any provisions of your will that, on their face, seem obviously unfair and that might invite a challenge under the Act.
- Joint assets - The difference between owning property as "joint tenants" or as "tenants in common" often causes confusion:
- If you own property with another person as "joint tenants", the whole asset automatically passes to the other person if you die, regardless of your will. (Ownership by spouses is usually as joint tenants.)
- If you own property with another person as "tenants in common", your share will be dealt with according to your will if you die. (Ownership by business partners is usually as tenants in common.)
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.
- To ensure that any changes to your will are made according to the proper procedures and are therefore legally valid, you should consult a lawyer.
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