Writing a will 



How can I ensure that my property will be passed on to the right people after my death?    

This is the reason for writing up a will. If you have a written will, it is much more likely that what you want to happen when you die will actually happen - and in the way that you want it to, e.g. how your dependent children will be provided for, and what happens to any property and treasured possessions you may own. 

You can write up a will at any time. You don't have to wait for major life events such as marriage or the birth of children or grandchildren to do so (though you may need to update your will at these times).

A will is essentially a set of instructions on what you want to happen after your death, especially regarding any property you own. However if you wish to set out how you would like your funeral to be carried out, it’s best to do this in a document that your family can access easily, as there can sometimes be delays in accessing your will. You can visit our funerals page for information about planning your own funeral. 

Elsewhere on this page you will find information on how to draw up a will, and who can help you with this process.

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What is an executor?

An executor is someone who is responsible for managing the distribution of the will maker's belongings (ie their estate) after the will maker's death.

Any person can be an executor of your will, as long as they are over the age of 18 at the time of your death and of sound mind. Most people choose a family member or friend, or a professional executor (e.g. a lawyer or a Trustee Corporation which provides wills and estates services). 

If you have very large or complicated estates you might consider appointing a professional executor as it may be a time consuming and complex task for a family member or friend to take on. When you have decided who you want to be the executor, consult with them so that they are aware of their responsibilities well in advance.

The executor may also need to act in the role of a trustee (see below).

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What is the role of the trustee of the will?

If the will includes instructions to set up a testamentary (or inheritance) trust, then it will also identify who will manage that trust i.e. the trustee.

The trustee’s role is to manage the assets in the trust (called the “trust fund”) until it can be transferred into the ownership of the beneficiaries - for example when a beneficiary reaches a certain age.

The trustee can be the same person or organisation as the executor of the will, or it can be someone different. 

It’s just as important to choose a trustee carefully as it is to choose an executor carefully.  If you have very large or complicated estate you might consider appointing a professional trustee as it may be a time consuming and complex task for a family member or friend to take on.

You can read about the role of a trustee for a family trust, on our Family Trusts page.

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What should my will cover?

In your will you should include the following kinds of information: 

  • the name of the person or people you have appointed to manage the distribution of your belongings (your estate) i.e. the executor and trustee (if applicable) of your will;
  • whether you want to be buried or cremated, whether you want to donate parts of your body for medical or scientific research, and how you would like your funeral to be carried out (but tell your family about these plans as they may not see the will until after the funeral!);
  • the name of the person or people you have appointed as guardians for your children (if you have any); 
  • instructions for how you want your money and other assets to be distributed to your partner, children, grandchildren, other family members, friends, charities etc;
  • the names of the people you would like to receive specific items in your possession, such as family heirlooms, mementoes, artworks, or other precious items;
  • what you want done with any digital assets you have, for example your social media accounts;
  • it should state that it revokes any other wills (in case you’ve made one previously).

To be legally valid, your will needs to be:

  • in writing,
  • witnessed by two people who are not beneficiaries of the will,
  • signed by the witnesses, in your presence and
  • signed by you (the will maker)

It is a good idea to set up enduring power of attorney (EPA) at the same time as making a will.  See our information on enduring power of attorney for an explanation of their role and how to go about setting up an EPA.  

If you want to make a will or update your existing will, see the question below on how to do this and who can help you.

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Who can draw up a will for me?

The CAB can't, but you can get a will drawn up by:

A Trustee Corporation
A trustee corporation provides professional personal trusts and advisory services including those relating to wills and estates. 

They not only write up wills, they can also act as executors and trustees for estates. Their administrative fees are generally less than those of private lawyers, though it always pays to do your research and 'shop around' before you commit to using a particular organisation. 

For more information about Trustee Corporations, and for links to individual Trustee Corporations, go to the website of the Trustee Corporations Association of NZ Inc (TCA).

A lawyer
A lawyer can write up your will and arrange for it to be witnessed, and if you wish, they can also provide executor/trustee services. There will be fees for each of these services - how much you are charged will depend on the fee structure the lawyer uses and how complex the will is. Some law firms will write a will for free for you if you already have other business with them. Be sure to find out what you are likely to be charged and how the fees are worked out, to help you decide which lawyer to use and what services you want them to do for you.

If you decide get a lawyer to write up a will for you, have a clear idea of what you want to be in the will before your meeting with the lawyer. You don’t want to end up paying for time just spent thinking about what you want in your will, if you could do this at home for free.

Doing it yourself 
There is nothing to stop you writing up your own will, by using a write-your-own-will kit purchased from a book retailer or by using an online wills service.

The cost of a do-it-yourself will varies widely depending on the provider and the complexity of your will, but if you only need a basic will you could to it for as little as $20. If your will might be more complex (e.g. there are children from a previous relationship, a family trusts or a business) then it might be wise to get help from a lawyer.

If you do write up your own will, before you sign it it’s best to get it checked by a lawyer anyway, who can check that everything is in order. The lawyer can also check that the will is properly dated, signed and witnessed. Any mistakes in the will could lead to problems with the granting of probate, or a challenge to the legal validity of your will, at a later date.

The CAB doesn't provide will templates or will-making kits but we can help you work through the types of things that you would like to put in your will and give you options for preparing and executing your will.

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Someone has asked me to witness their will. What do I need to know?

When you witness a will, you are simply witnessing that you saw the will-maker sign their will. You are not responsible for the content of the will and are not witnessing that the will is correctly drafted or is legally valid.

It’s important that the witnessing is done properly to avoid problems with the will at a later date:

  • You cannot witness the will if you are a beneficiary of the will.
  • If you don’t personally know the will-maker, ask to see some photo ID to confirm they are the  person named on the will.
  • You, the other witness and the will maker, must all be present together and watch each other sign the document.
  • The will-maker can alter their will before signing, but the will-maker and both witnesses must sign or initial in the margin or near the alteration.
  • You should all use the same pen - this reinforces the fact that the will was signed and witnessed when all three people were together. 
  • Sign each page of the will - this reinforces that the separate pages are all part of the same document.
  • The will should be dated at the time of signing.

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What happens to my will if I get married or divorced?
 
If you get married or enter a civil union your will is automatically revoked unless it states otherwise or specifically says that it was made with regard to the coming union.

If you get divorced or leave a civil union (i.e. you have a separation order or the relationship is formally ended by a dissolution order) most benefits given to your former partner in the will are cancelled unless it is made clear after the divorce, and in the will, that you wish them to have the benefits or it can be proven that the benefits are relationship property.

If you need further more information, you can talk to a Trustee Corporation or your lawyer (check first to see whether this will incur a fee).

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How do I ensure my children won't mis-manage their inheritance when I die?

Inheritance or testamentary trusts
If you are concerned that your children won’t be able to manage the money properly, you could establish an inheritance trust for each child. In your will you state at what point each child may receive their inheritance (for example when they reach the age of 18). If you die before a child has reached that age, the money which the child would have received instead goes to their trust (this is called a trust fund). The trust is administered by a trustee, who manages the money and invests it until the child may take control of the trust fund.

Family trust
You could also consider setting up a family trust. This allows the money to be transferred (“gifted”) to the trust before you die. The advantage of doing this is that if anyone wishes to make a claim on your estate (e.g. other family members), they can’t easily make a claim on the money held in trust. However there are a few legal obligations associated with family trusts.  

Testamentary guardian
If you aren’t confident that the surviving parent or guardian will raise the children in the way you’d like (including how the children’s money will be spent), you could appoint a testamentary guardian in your will.

A testamentary guardian does not have custody of the children, and may have to work with other guardians (e.g. the surviving parent) but has a say in the upbringing of the children. Once the child turns 18 years of age (or gets married, enters a civil union or enters a de facto relationship, the guardianship ends. More information about guardians is on our Guardianship page.

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What is a ‘life interest’?
 
In your will, you can grant ‘life interest’ to someone so that they will have the right to use a property for the rest of their life without becoming the owner of the property.
 
A life interest is usually set up to provide for people who are dependent on the will maker. An example of this is an elderly uncle who lives with the will maker, being given a life interest in the house until the uncle's death, at which point the ownership of the property passes on to the will maker’s children.

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What is a living will?
 

A living will (also called an 'advance directive') sets out preferences for your medical care in the event where you are physically or mentally unable to decide on the care you would like. It's not the same as an enduring power of attorney though, and the Health and Disability Commissioner recommends that having an enduring power of attorney as will be more effective.
 
So, for example, an advance directive would clarify whether or not you would want to be resuscitated or have your life support system turned off under certain circumstances. Your advance directive would be more likely to be followed if you involve your family and your health providers when writing it, and give them copies. See the Health and Disability Commissioner website for more information.  
 
A Community Law Centre, Trustee Corporation, or lawyer can help you make a living will, or you can do it yourself. The New Zealand Medical Council has a sample advance directive at the back of their guide.
 
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I made a will when I was living overseas – would it be valid here in New Zealand?

Your will should be valid in New Zealand as long as it fulfils the legal requirements

If you have property overseas when you die, how that property is treated depending on whether it is “movable” (eg bank accounts, shares, cash) or “immovable” (ie land and buildings). Any movable property you have overseas will be distributed according to your will as long as it fulfils the legal requirements for a will in New Zealand. Any immovable overseas property overseas will be distributed according to your will as long as it fulfils the legal requirements of a will in that country.

You can read about how overseas property affects the granting of probate or letters of administration, on our Administering an estate page.

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My spouse and I jointly own our home – does this affect my will?

Yes it can, so it’s important to be clear whether the joint ownership in the house is a “joint tenancy” or “tenants in common”.

If the title deed has both of your names on it and refers to “shares” then you and your spouse each have shares in the house and the type of home ownership you have is called “tenants in common”. This means that if you die before your spouse does, your share of the house will go to whoever is named in your will.

If the title deed on the house has both of your names on it but does not refer to “shares” then the type of ownership you have a “joint tenancy”. This means that if you die before your spouse does, your spouse will get full ownership of the house - regardless of what it says in your will. Joint tenancy is the most common form of joint ownership.

You can find out more about these types of ownership on our Land titles page.

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What do I need to know about passing on Māori land?

There are special rules governing who can inherit Māori land, and this is covered by Te Ture Whenua Māori Act 1993 (also known as the Māori Land Act).

If you own shares in Māori land you can state in your will who you want to pass your shares to when you die (ie your “successor” or “successors”) - but you can only leave them to your descendants, siblings, and other people who are in what’s called the “preferred class of alienee”.