LawHawk Guide to New Zealand Wills

It's not easy thinking about your own mortality, the "what ifs", and protecting your loved ones when you're not around.  By creating a will, you'll at least protect your loved ones by directing the distribution of your assets.  To help make this process as easy as we can for you, we've provided an online will, which will allow you to prepare a will in minutes and is customised to your specific circumstances.  As you step through the simple online will process, you'll be guided through what to think about, and how to answer the questions, all in plain English.  We've summarised this for you in one place, below.  Whether you decide to prepare your will through LawHawk or elsewhere, these are the key things you should consider.

Couple Doing Will

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"I was somewhat unsure about this, but I was pleasantly surprised! I found the interview easy to complete, and when my final document was incorrect (my error), I emailed to ask for help so I could access it and I received a quick (night-time) reply giving me instructions about doing it again. I redid it a number of times within the 24hr window and was so pleased with the result. Well worth it and I have told everyone I know to do it too."

A review of the LawHawk online will from Eva

Introduction

In this summary we will look at a New Zealand will, and some of the key things to consider when drafting one

Many wills are, in practice, far simpler than this summary would suggest, as many of the options covered below are not applicable to every situation.

This guide is mainly written from the perspective that you are writing your own will. 

WARNING: Take particular care if this will relates to an “unusual situation”

The commentary below relates mainly to the situations that are possible to cover in LawHawk’s online will, which is for less complex and more common scenarios. 

In more “complex” or "unusual" situations, you should get specific legal advice to ensure that any will is suitable for the circumstances. In this case, we would recommend talking to a lawyer and other professional advisers first before attempting to draft your own will, as there may be a number of broader considerations and steps to be taken outside of just “the paperwork” that need to be taken into account.

While not exhaustive, some particular situations that might be considered complex or unusual are:

•  You have a family trust holding some family assets and/or want to leave your assets to the trust, or deal with rights you have under the trust (such as the right to appoint trustees).

•  You are in a second relationship, with children from the first.

•  Some of your intended beneficiaries have special needs.  You may want or need to make particular provision for those beneficiaries, and will want to ensure that this is done as well as possible, and will not be able to be challenged.

•  You have complex or unusual assets. These could include business assets – such as a business run as a sole trader, a partnership, or shares in a closely held company that operates a business.  If there are other partners or shareholders in the business, there may be other agreements which regulate what should happen when one of the partners or shareholders dies.

•  You have overseas assets.  In this case, particular advice may be required on what should happen to those assets.

•  You want to leave a potential claimant out of the will, such as an estranged child.  This is an area where the child may subsequently want to challenge the will, and so specific advice should be taken on how to minimize the risk of a successful challenge.

•  You have, or may have made testamentary promises e.g. you have promised someone that they will be given some entitlement in the will.

•  You have recently separated from your spouse/partner, and have not yet settled the division of the relationship property.

What is a will?

A will is defined in section 8 of the Wills Act 2007 as a document that is made by a natural person that does any or all of the following:

•  disposes of property to which the person is entitled when he or she dies; or

•  disposes of property to which the person’s personal representative becomes entitled as personal representative after the person’s death; or

•  appoints a testamentary guardian.

What happens if I die without a will? 

They didn't leave a will

When your family find that you didn't leave a will! 

Dying without a will can make things a lot more complex and expensive to administer, during what will already be a stressful time for your friends and family. 

For more examples of the issues that can arise, and why it is good to have a will, check out this blog: 30-something years old, in a relationship – do you and I need a will?

What are the requirements for a valid New Zealand will?

The legal requirements for a valid New Zealand will are not extensive.  You can see these in section 11 of the Wills Act 2007. The key provisions are:

(1)        A will must be in writing.

(2)        A will must be signed and witnessed as described in subsections (3) and (4).

(3)        The will-maker must—

(a)        sign the document; or

(b)        direct another person to sign the document on his or her behalf in his or her presence.

How do I revoke my earlier will? 

If you already have a will, you need to revoke it.  

The easiest way to do this is to include a standard paragraph in your will that states "I revoke all my earlier wills and codicils."  The LawHawk will automatically includes this paragraph. 

How to describe the will maker

It is good practice when drafting a will to set out the full legal name of the will maker, along with their address and occupation, for example “Brian John Smith, Wellington, Plumber”. This helps with identification.

If you are not the will maker yourself, it is good practice to ensure this is correct by checking against official documentation, such as a drivers licence or passport. 

If the will maker is also currently known by any other names, it is a good idea to note those other names too (also known as…), to reduce room for doubt.

When entering the location, you don’t need to insert the exact street address.  Just naming the town or city would be sufficient. The aim is to make identification of the will maker easier.

Are there any unusual circumstances affecting the will maker?

There could be some unusual circumstances affecting the will maker and which may affect how the will needs to be drafted, signed or witnessed.

While not exhaustive, look out for the following things:

•  Someone who is a Property Manager under the Protection of Personal Property Rights Act 1998 ("PPPRA") will need to sign for the will maker

•  Someone else (who is not a Property Manager under the PPPRA) will need to sign for the will maker

•  The will maker will sign by mark (as they can’t do a full signature)

•  The will maker is blind

•  The will maker cannot read

•  The will maker needs the will translated to them into another language to understand it

•  The will maker is deaf and unable to speak.

•  If the will maker needs to sign by mark, for example, you may need to set out why that is.  It is also a good idea to explain whether they read and understood the will before signing, or if it was read to them, and they listened and understood that reading before signing.

•  If the will is translated into a foreign language, it will help to avoid issues on enforcing the will if you explain what that language is, and who did the translation, and get the translating witness to certify that they read the will to the will maker in English and in the foreign language.

How to describe other people in the will

It is a good idea to think ahead to all the other people who will need to be referred to in the will (for example as they will receive specific gifts or assume specific roles), and to make sure that you have all their relevant details.

Again, it is good practice to know their full legal name, address (again, just town or city is fine) and occupation for ease of identification.  It is also a good idea to be able to specify their relationship to you (e.g. “my son”).

This concept is not limited only to individual people.  It could also apply to trustee corporations (who may be selected as executors or back-up executors – see further detail below), or charities that gifts will be made to.

It may not even be limited to people who are living at the time of entry into the will.  For example, you may need details of a person who has already died if you want to be buried with them.

In each case, it is best to check the correct legal names by official documentation wherever possible, to avoid any risk of confusion.  For a trust or partnership, which doesn’t have separate legal status, the best you can do is to sight the trust deed or partnership agreement, and then enter the name of the trust or partnership, and the date of the trust deed or partnership agreement, as accurately as you can.  You are better to refer in this scenario more generally to the trustees of that trust or the partners of that partnership, rather than specifically naming them, because between signing the will and your death, the particular trustees or partners may have changed.

How does marriage or civil union affect my will?

It is very important to consider whether you are already married or in a civil union, or if you are contemplating marriage or a civil union.

Section 18(1) of the Wills Act 2007 provides that a will is revoked if the will-maker marries or enters a civil union, but this does not apply if the will expressly says that it is made in contemplation of a particular marriage or civil union.

If you are contemplating marriage or civil union, you should decide whether or not the will only takes effect if you actually do get married, or it takes effect anyway whether or not  you actually get married.

If you want to know what happens to a will when a marriage or civil union ends, see section 19 of the Wills Act 2007.   This includes that the appointment of your spouse or partner as executor or trustee or advisory trustee of your will is voided.

Requirement for a continuing relationship

A different relationship consideration is whether you are in an existing relationship, and whether any of the gifts or appointments are conditional on remaining in that relationship.

If that is the case, you may want to consider adding a clause along the lines of:

“At the date of this will I am in a committed relationship with [Name]. If my Trustee determines (my Trustee’s decision to be final and binding) that my relationship with [Name] has ended prior to my death, the provisions of this will shall be revoked to the extent of any benefit to [Name] but are confirmed and will remain in full force and effect in all other respects.”

This does not apply where the relationship is marriage or civil union. If you want to know what happens to a will when a marriage or civil union ends, see section 19 of the Wills Act 2007

The role of trustee corporations in relation to wills

You should also consider the trustee corporations (Public Trust, The New Zealand Guardian Trust Company Limited, or Trustees Executors Limited), and whether they might play some role in the will.  For example, they might be the executor or a backup executor.

You could appoint them formally (it would be a good idea to check with them first before doing so), but another alternative is to appoint an individual (e.g. your spouse) and then, if they need to, they can seek assistance from the trustee corporation at the relevant time, if that makes sense in the circumstances.  For example, see Public Trust’s Executor Assist service

The role of executor and trustee under a will

The most important role under the will is that of Executor and Trustee. 

We’ve answered some of the key questions you should think about below.

What does the role of executor include?

In general terms, the role of executor includes:

•  organising the funeral

•  applying for grant of probate from the court (depending on your assets)

•  identifying, securing and collecting in your assets

•  paying expenses and liabilities

•  distributing or otherwise managing assets in accordance with your will.  If the executor is also the trustee (see below for further guidance), this may include holding and managing assets/funds on trust (e.g. a life interest trust, or trust for a minor beneficiary)

•  accounting to beneficiaries for funds collected, payments made etc.

•  attending to final tax matters for the deceased, and estate tax compliance

•  dealing with claims/potential claims

•  contacting your banks, insurers, share registries, KiwiSaver provider, utilities providers etc. so that the relevant accounts can be closed and dealt with

•  exercising powers of appointment (often power of appointment of trustees) where the deceased was the settlor or otherwise held powers in connection with a family trust

•  in some cases the executors also have to help manage and resolve family tensions that often rise to the surface on death.

What are some of the qualities you should be looking for in an executor?

In light of the above, the executor should be someone:

•  You trust, and who has the skill set to deal with the role (e.g. well organised, dependable, good with paperwork)

•  Who is capable of engaging with and instructing lawyers and other professionals whose help may be required in connection with the administration of the estate

•  Who is not too old/likely to die before you

•  Who is likely to be available and have the time/capacity to deal with it following the will maker’s death – preferably someone who lives in the place where you live, or at least in New Zealand

•  Who is not likely to go overseas, or be hard to track down following your death

Are there any restrictions on who can be an executor?

If an individual, an executor will not be entitled to a grant of probate until he/she has attained full age (currently 20 years old) or he/she is at least 18 years old and is or has been married or in a civil union.

Probate is a court order recognising a will as authentic and confirming that the executor has authority to deal with your estate.  Generally speaking, probate will be required if your estate is over $15,000 in value.

Who would commonly be appointed as executor?

The most common options are:

•  Spouse or partner

•  Parents (for younger people)

•  Children (for older people)

•  Siblings

•  Trusted family friends

•  Trusted professional advisors – lawyer and/or accountant

•  Trustee company e.g. Public Trust or Perpetual Guardian

How many executors should be appointed?

It’s worth thinking about appointing two or more executors, particularly where there are ongoing trusts.  However, you don’t want too many people involved – more than 3 would be unusual and 2 would be more common.

It’s also worth naming alternates or back-ups – people to act if the first named person/people can’t.  This might be especially important if your original executors are the same age or older than you.

If you name more than one executor or back-up executor, you should also cover what you want to happen if one of them is unable or unwilling to act. For example, if you appoint two original executors and one dies, does the other continue alone?

Can the executor also be a beneficiary under the will?

Yes

What is the difference between the role of the executor and the trustee?

The trustee is responsible for holding your assets until they can be paid to the relevant beneficiaries.  The roles of the executor and trustee are often combined, and we have assumed the executor and the trustee will be the same person(s) in our automated will.

What is the role of an advisory trustee?

An advisory trustee is someone who can input into the trustee decisions without having all the formal powers and responsibilities of being a trustee.  An advisory trustee can also be a beneficiary under a will.  In our automated will, we expressly ask you to confirm this.

Should I get the approval of the executor before appointing them?

Whoever you choose, you should get their approval before naming him/her/it as executor in your will.  You want to ensure that they know what will be required of them at what could already be a stressful time, and that they are happy to carry out the role.

It is a good idea for them to hold at least a copy of the signed will and that they know where to find the original (if they don’t hold it for you).

How much do executors charge?

Most family members and close friends will carry out the role for free.  For third parties such as trustee companies and lawyers, they will take a fee which will come out of your estate. These fees can be calculated in different ways, and you should enquire how your intended executor will charge in deciding whether to appoint them.

You can appoint more than one person to be the executor and trustee. 

While it is possible to appoint an executor, and then a different person as trustee, it is more common for the executor and trustee to be the same person(s).

It is quite common for a will maker to appoint a family member (e.g. a spouse, child, or sibling) to be the executor and trustee, particularly if they have the skills to be able to manage the responsibilities themselves. However, as noted above, even if they don’t have all the skills required, they can get appropriate advice from lawyers, accountants, or trustee corporations if they need, and this could be a better option so that costs are only incurred to the extent they are actually needed, rather than paying professional fees to manage the entire process when some of it is not that complex.

You could also consider appointing someone as an advisory trustee.  This would be somebody who can have input into the trustee decisions, but without necessarily needing to have all the formal powers and responsibilities of being a full trustee.  

Backup executor and trustee

For many of us, we sign our will when we are young, and hope that it will not be needed for a VERY VERY LONG TIME!

It’s a good idea to regularly review your will to ensure that it remains appropriate as things change in your life, but in practice that doesn’t always happen as regularly as it should.

It is therefore a really good idea to appoint a backup executor and trustee. You don't have to, but if something was to happen to your original trustee or they were to cease to be available to act in that role (they could die in the same accident, or might move away or just change their mind), to make sure the will doesn't become invalid or end up with problems that you could easily avoid, you can appoint a backup.

What should happen to your body or ashes when you die? 

One of the things which wills commonly deal with is what should happen to the body of the will maker after they die.

The first thing to decide is whether you want to be cremated or buried.  Depending on the option chosen, different alternatives are possible.  With cremation there is an option to have ashes scattered, for example.

You can then consider where you would like your remains to be buried, and whether you want to be buried alone or with someone else.

It is also possible to set out your intentions regarding donation of organs in the will for corneal grafts, transplants, or medical research.  The advantage of this is that it helps to clarify that this was your definite intention.  Of course, it also relies on the will being located, read and understood in time for the intention to take effect too.

In some cases (e.g. donation for medical or education research etc), it's important that prior arrangements have been made with the medical school for that. If this is your intention, this should also be made known to your doctor, relatives and the superintendent of the nearest major hospital, because urgency is critical and delays may make the donation impossible.

The key in all provisions about what should happen with the body and ashes is to ensure that the intention is legally allowed, practical, and that the family and trustee know of the intention in time to make it happen.

How do I appoint a testamentary guardian for my children? 

If you have any children (or plans to have children during the time when the will is in effect), then it's really important to deal with who should take guardianship of the children.

This would commonly only apply if any other legal guardian (e.g. the other parent) was also deceased.

Testamentary guardians are appointed by a will of a parent of the child. The person appointed becomes a testamentary guardian automatically when the parent dies.

A testamentary guardian becomes a joint guardian with any other guardians. However, the surviving parent or guardian can challenge the appointment

This doesn't necessarily need to be the person who the children who will go and live with.  It's more who will make the decisions about what should happen with the children, and where they will be best to live. It could be, for instance, parents or parents in law who could make those decisions, even if the children weren't to live with them. 

It’s also a good idea to specify backups for these roles as well, in case something should happen to the original guardian.

For more on testamentary guardians, see section 26 of the Care of Children Act 2004.

Doing Will with the kids

"Would you prefer my sister or Dad's sister as your guardian?" - letting the kids decide who their guardian will be when you can't agree amongst yourselves...

Making particular gifts under a will

Having covered the main preliminary matters, we now need to think about what happens to the will maker’s assets.

Towards the end of the will, you have a section dealing with the remaining estate, which is what is left after paying of all commitments, and dealing with any specific gifts.

A number of people don’t include any particular gifts and go straight to the remaining estate.  There’s nothing wrong with that approach if that is what you want (and in particular if it is a simple estate).  But at the same time, a will is a very personal document and if you want to make particular gifts you should be able to do so.

This can be your opportunity to recognise the particular role that others have played in your life and to make sure that any items of particular value or significance to an individual go to them, instead of being sold for example. 

There are many different types of particular gifts that can be made.  Some of the more common are:

•  Gifts of money

•  Gifts of chattels

•  Gifts of investment securities

•  Gifts of land

•  Gifts to charity

•  Grants of options to purchase land or other property

•  Grants of life interests in land

•  Grants of rights to occupy land

•  Forgiveness of debts

•  Dealing with rights of appointment or removal of trustees

Gifts of money under a will

The process for making a monetary gift should be relatively straightforward, but you can make it more specific (and complex) by adding conditions to the gift.

For example, you might want to specify conditions, such as that the recipient has survived to a certain age (e.g. 21).

You might then deal with what might happen if that condition wasn't satisfied.  For example, you might say that a gift to a daughter is to be divided equally among the daughter’s children living at your death. Alternatively, you could decide that in that case, the gift should fail and the money go into the remaining estate.

Another consideration is what should happen if you specify a number of monetary gifts, but there aren’t enough funds in the estate to pay them all.  Possible options include that they could be paid out in the order they're listed in, or they could abate proportionally. 

Gifts of chattels under a will

Gifts of chattels is an area for particular consideration and focus, because while they are not necessarily the most valuable things that you own, personal possessions can be of the most sentimental value to you and your family.

It might make all the difference to ensure that your jewellery goes to your daughter to ensure they are passed on from generation to generation.

Your chattels can be defined in different ways, depending on the effect you are intending to achieve.

If you just wanted to gift all of the chattels to a person (or group of people, e.g. your children) you could use a general definition.  One example is to refer to “personal chattels” as defined in section 2 of The Administration Act 1969 i.e. "personal chattels, in relation to any person who has died, means all vehicles, boats, and aircraft and their accessories, garden effects, horses, stable furniture and effects, domestic animals, plate, plated articles, linen, china, glass, books, pictures, prints, furniture, jewellery, articles of household or personal use or ornament, musical and scientific instruments and apparatus, wines, liquors, and consumable stores, which immediately before his or her death were owned by him or her or in which immediately before his or her death he or she had an interest as debtor under a security interest as defined in the Personal Property Securities Act 1999, or as purchaser under a hire purchase agreement; but does not include any chattels used exclusively or principally at the death of the deceased for business purposes or money or securities for money"

Alternatively, you could refer to something like “all of my clothing, furniture, jewellery, and other articles of household or personal use, or ornament”.

But if you want to be more specific, and to split different chattels among different people, you can make your own descriptions up.  In that case though, you do need to be careful to ensure that each gift is clear and not inconsistent with any other gift.

You also need to be very precise in your language.

For example, if you say, "I'm giving “my” 2015 Hyundai Santa Fe to [Name]," then if the 2015 Hyundai Santa Fe is no longer owned by you at the death, then that gift would fail.  

Alternatively, if you give “a” 2015 Hyundai Santa Fe to that person, then if you didn’t own a Hyundai Santa Fe at the time, the assets of the estate would be able to be used to go out and buy that asset.

So it's important to be very careful about whether it's “all” or “my” or “a”, as each has different applications.

Depending on how you have defined the chattels, you may also want to specify exclusions from them too.  For example, you could describe “all” of your jewellery, which is to go to one person, except one item which is to go to someone else.

Another consideration about including and excluding, is the contents of chattels.  For example, if giving furniture (e.g. a cabinet), you may want to make it clear whether that gift includes the contents of that furniture, or only the furniture itself.

It is possible to give chattels to a group of people (e.g. your children) and then to set out how the chattels are to be further divided amongst that group (and how any disputes will be resolved).  For example,  you might want to separately advise the Trustee or family of your wishes in that regard and refer to division “in accordance with my known wishes”), or it could be left to the agreement of the relevant recipients.

In either case, if you have not made your wishes known, or the recipients cannot agree, you may want to specify that it will default back to the Trustee's decision in some way e.g. “as equally by value as my Trustee determines is reasonably practicable after consulting with them”.

If any of the intended recipients are minors, you may want to provide that the gift can be effected by delivery to the guardian, which will be a full discharge to the Trustee of their responsibilities.

Gifts of investment securities under a will

You may own various investment securities, which could include shares, or interests in limited partnership, units in unit trusts, or other investments.

If these are not intended to be sold and distributed as part of the remaining estate, you could specify who these are to go to. 

Again, you could specify that the relevant provision is to apply to all investment securities, or break it down to include only some in particular.

As noted above, if the investment securities are shares in a closely held business that operates a company, particular care is needed.

Gifts of land under a will

For many people, the most valuable asset they own could be land (e.g. the family home), although sometimes it may also be subject to a liability such as a mortgage. 

You may own only one property, or you could own several, and you may own it separately or together with someone else.

You can think about specifying the land in different ways including:

•  all land (which has not otherwise been dealt with under the will)

•  land at a particular address

•  your principal residence (wherever that was) at the time you die.

Given that circumstances may change between the time of entering into the will and when you die, you should also consider what should happen if any particularly named property is no longer owned by you at the time you die, and whether the gift should include any substitute property.

Because land often has a mortgage associated with it, you should consider whether the land should be gifted free of the mortgage, or subject to it. 

If the gift is free of the mortgage, the trustee would use other funds in the estate to try and pay off the mortgage. 

If the gift is subject to the mortgage, the recipient of the gift would need to pay off the mortgage themselves in order to receive the gift.

Gift to charity under a will

If you would like to give a gift to charity, there are various options.

Firstly, you could decide to give a gift of money, or of some other property.

It’s a very good idea to check with the charity themselves for guidance on how to describe any gift to them.  For instance, the Salvation Army’s website contains some specific suggested wording, both for how to name them and to describe the gift: http://www.salvationarmy.org.nz/support-us/remember-us/will-wording-appreciation-recognition

You should also decide whether the charity can use it for just any of their general charitable purposes or if there is some specific purpose that you have in mind, in which case you would enter that. 

Lastly, you should consider what would happen if the charity doesn’t exist at the time of your death.  Should the gift fail, or should the trustee be able to distribute it to another charity which the trustee considers most closely matches your objectives?

Option to purchase under a will

A different type of a gift is an option to purchase.

You may not want to just give the property to somebody - you may prefer them to have the right to be able to buy it instead.  This would perhaps then provide funding that could be given out to other people as gifts.

This can be a very flexible concept.  It could be an option to purchase all land you own, or an option to purchase particular land that you own, or an option to purchase some other property that is not land (for example, the shares in your business).

Life interests under a will

Rather than giving a property absolutely, you might want to give a life interest i.e. the right to live in the property for the rest of the recipient’s life.  It would only be sold, and proceeds distributed, after the recipient had died.

Once again, if a specific property is named in the will, you should consider what should happen if that particular property has been sold.  Should the life interest extend to any property acquired in substitution for that property?  

Right to occupy under a will

A variation on a gift of a life interest is the grant of a right to occupy a property for some lesser period.   This might be for your children until they reach a certain age, or your partner until they enter into a new relationship perhaps.

The key difference to consider from a life interest, is what are the reasons that would terminate that right to occupy?  Some possible examples would be:

•  Death

•  Re-marriage (or new civil union)

•  Entry into a de facto relationship

Another scenario could be failure to comply with any conditions attached to the right to occupy. For example, you may specify that the occupant needs to look after and maintain the property. If they were to be repeatedly failing in those obligations, that could be a reason to terminate the right to occupy.

Forgiveness of debt under a will

One particular type of asset that you may have is debts owed to you, particularly if they own a family trust and originally transferred the property into the trust in exchange for a debt which has not been repaid or forgiven yet.

Alternatively, you may have lent money to a family member (e.g. a child) to help them buy a house or establish a business.

You can specify that the forgiveness is of all debt (whatever it is at the time) or specific identified debts (in whole or in part). 

Powers of appointment and removal of trustees under a will

Another thing that comes up with trusts is what happens to any powers of appointment or removal of trustees that you might hold in respect of that trust, and who would hold them.

This is a very important power.  If it is relevant, you should carefully check the trust deed to ensure you exactly match its requirements.

Other gifts under a will

The summary above only covers some types of gifts that you might want to make. 

Every individual’s circumstances are different, and so you should consider what else is needed to make the will as good as possible for you.

If you are really doing something unusual, complex, or very high value, that is an area to take particular care in and to get all necessary advice.

Gifting the remaining estate under a will

Once any particular gifts have been detailed, it is then time to allocate the remaining estate.  This will be subject to first paying all the bills of the estate.

There are a number of different options in terms of how the remaining estate can be allocated.

The first is to give everything to one or more named people.  Commonly this would be your husband, wife or partner.  If that person has already died, the remaining estate can instead go to one or more other people, which might be your children and/or one or more trusts (equally, or on some other basis). 

If you don't have an existing partner, you might just want to go straight to that other category of people – e.g. the children or trusts.

If you have a family trust, you might want to allocate everything to the trust.  The advantage of doing this is that the trustees of that trust could distribute the assets more flexibly according to the needs of the beneficiaries of the trust. If you are concerned about your children’s partners for example, you may have set up trusts for your children and prefer to make the distributions to the trusts rather than directly to the children.

A more flexible way of doing things is to break up the estate into a number of portions (e.g. 10 parts) and then allocate the parts to different people e.g. three parts will go to one person, three parts to another person, and then two parts to two other people each to make up the ten.

Lastly, for more complex situations it's possible to give the income of the remaining estate to somebody for life, and then the capital to somebody else. Or the income and capital to named people for life, and then the capital to one or more others.  These are more complicated though, and may require specific advice.

Despite any specific gifts that are made, it can be a really good idea to also think about a final backstop distribution.  What would happen if there was a family disaster for instance? If a husband and wife and all the children were to die in the same accident, what would happen there?

A common approach there would be to divide the remaining estate into a number of parts (e.g. 3) and then divide those parts amongst some other individuals, groups (e.g. siblings) or charities.

How do I sign my will? 

Whether you prepare your will using a "do it yourself" service such as LawHawk, or you arrange for your lawyer to prepare it, it's important that you read the will carefully (or have it read to you), understand its contents, and confirm that it is consistent with what you want to happen when the time comes. 

Once you're happy that’s the case, you need to sign your will properly.  If you don't, or if you attempt to make changes to a printed will by hand, your will may not be valid, or you may make things difficult for your executors to obtain a grant of probate. 

Before you sign your will, you will need to arrange for two people to be present as your witnesses. The witnesses can be neighbours, friends or work colleagues - pretty much anyone as long as they are over 18 and mentally capable. 

The witnesses should not however be people who are beneficiaries under your will, or spouses or partners of people who are beneficiaries under the will, as this may prevent them from getting what you have left them in your will.

Your witnesses must, at the same time, watch you sign your will, and then sign the will as witnesses to your signature.  All pages (other than the cover page and signing page) should be initialled by you and the witnesses.

Do I need to involve my lawyer or other professional advisors?

A will is NOT a simple document.  If you need help at any stage, you should get help from a lawyer or someone else who can help you.  If you use LawHawk to prepare your will, and a lawyer who knows the LawHawk will (such as Matt Hay from Succeed Legal in Wellington, who we worked with to prepare the LawHawk online will), they will be able to pick up exactly where you are up to, keeping your costs to a minimum.  

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Alternatively, you could find a lawyer via legal market places like Consensus or MyAdvice.Legal.

It's a good idea to see a lawyer anyway, given how important your will is. But if you've got more complex or unusual requirements, such as those described earlier in this guide, it's even more important

Where should I keep my signed will? 

Once your will has been signed, you will need to make sure that it is kept in a safe place, and let your executors know where to find it.  It is important that you keep the original, as your executors will need this to get a grant of probate following your death.  It is also important that the original is not tampered with (staples removed, and re-stapled etc) or damaged.

A will that has been tampered with, or damaged, can also cause difficulties for your executors when it comes time to get a grant of probate.

Conclusion

Hopefully this has been valuable to expand on the range of things you might want to consider when drafting a will and ensuring it really is fit for a particular purpose. It may also assist with reviewing wills prepared by others.

If you want a really easy and fast way to navigate through the considerations above, try the LawHawk online will. This summary reflects the questions in the interview for that document.

This summary is subject to LawHawk’s Terms and Conditions.

Feeling when finished your will

That feeling when you've finished doing your will!