How can I ensure that my wishes will be carried out after my death?
Who can draw up a will for me?
How do I go about making my will?
What happens to my will if I get married or divorced?
I’m worried that my young children won’t be able to manage the money I leave them. What’s a good way to manage money for them if I die?
What is a ‘life interest’?
My mother has died, and her will is missing! Where can I find it?
My father didn’t make a will when he died. What happens to his estate?
In what circumstances can a will be challenged?
Can I challenge the will if I'm an adoptive child of the deceased?
Do I have to share an inheritance with my spouse?
What is a living will?
How can I ensure that my wishes will be carried out after my death?
You can leave instructions in your will for the executor of your estate or family members to carry out. The executor is only legally bound to distribute your estate according to your wishes rather than ensure all of your instructions are followed, but if you have included reasonable instructions in the will, they will usually be carried out. There is also a page on planning your own funeral at the Funeral Directors Association website that includes planning kits and a form for what you would like to happen at your funeral, and you could try using this to record any wishes you’d like followed after your death.
Who can draw up a will for me?
A will can be drawn up by:
The Public Trust. The Public Trust will draw up a will for free if they are to be the executor of your will, but you have to pay if you choose a different executor. Their fees for writing and executing a will are usually in the region of $2000 dollars. Their administrative fees are generally less than that of a private lawyer. The Public Trust now offers a will writing service online.
A lawyer. There is no fixed price for writing up a will. A lawyer will charge you for the time that they spend advising you and writing it up, but if it is a very basic will, they may charge you a set fee. The amount of time it takes depends on how complicated the will is. If you are getting a lawyer to write up a will for you, you should go to them with a clear idea of what you want to keep the time they charge you for to a minimum.
Doing it yourself. There is nothing to stop you writing up your own will, and there are several write-your-own-will kits available. If you write up your own will, it’s usually best to get it checked by a lawyer to see that everything is in order and that the will is properly signed and witnessed.
How do I go about making my will?
A will is the way to make sure that your belongings and money are distributed in the way you want them to be after you die. In your will, you should:
- Appoint people who will manage the distribution of your belongings. These people are termed executors (or trustees if you establish a trust)
- Appoint guardians for any children
- Instruct how you want your money and belongings to be distributed, first by naming any specific gifts, and then how you want the rest of your property distributed
- Instruct whether you want to be buried or cremated, and whether you want to donate parts of your body for scientific or medical use
When making a will, you should consider not only your major assets, such as a house, business, or money in bank accounts, but also your debts, like mortgages or loans. You should also consider what specific items you want to leave to people, like family heirlooms, gifts to charities, or mementoes to friends.
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
- signed by you
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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 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 they are relationship property. For more information, you can call the Public Trust on 0800 371 471.
I’m worried that my young children won’t be able to manage the money I leave them. What’s a good way to manage money for them if I die?
If you are concerned that your children won’t be able to manage the money properly, you could establish an inheritance trust. This means that the money is invested and managed by a named trustee until the child reaches a certain age, at which point they can take control of the investment. This arrangement can be used whether or not there is a surviving partner, and the trust money could also be used to pay for their education fees. If you’d like to find out more about trusts, see our Banking, Investments and Trusts section.
Another way to help the children manage an inheritance is to appoint a testamentary guardian in the will whose responsibility it is to manage the children’s finances. A testamentary guardian does not have custody of the children, and is a joint guardian with others, but has the right to control the upbringing of the children and can be given the right to manage the children’s finances.
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What is a ‘life interest’?
In a will, a ‘life interest’ can be used to grant someone the right to use a property for the rest of their life without ownership.
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 death, at which point the ownership of the property passes on to the will maker’s children.
My mother has died, and her will is missing! Where can I find it?
If you can’t find a will, it could be in several places. If it has been misplaced or taken, there may be a backup copy somewhere, for instance with:
- Their lawyer
- Their bank
- The Public Trust office if they drew up the will
If you can’t find it in any of these places, there are some other options. If you don’t know who your mother’s lawyer was, you can check with the Land Titles Service, as the lawyer’s name will be on the titles. You might also try using the International Index for Last Wills and Testaments to search for the will (this only works if the will has been registered on the index).
If you are having difficulties finding a will, consider also the following possibilities:
- The deceased may have made a will under a different name. For example, a woman might have made a will under her maiden name or a previous married name.
- The deceased may have made a will in a different city or area.
- The law firm acting for the deceased may have closed down, in which case the will would have been deposited with another firm.
- The deceased person may have destroyed all copies of the will, intending to revoke (cancel) the will
If no copy of the will can be found, the estate will be treated in the same way as if no will was written. You can still make any claims to money or property provided you have the necessary proof of entitlement.
My father didn’t make a will when he died. What happens to his estate?
When there is no will, it is called ‘intestacy’. In the case of your father, this means that his property will be distributed amongst the family (his spouse, children, parents, siblings and siblings' children) according to the rules in the Administration Act 1969. Anyone else would have to prove that they were promised property or money.
The Court will appoint someone, normally a surviving relative, to distribute the estate (this is referred to as the Court having granted ‘letters of administration’) according to these rules. You can apply to the High Court to be granted the letters of administration.
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In what circumstances can a will be challenged?
There are certain circumstances in which a will can be challenged. These methods of challenging a will are detailed below.
If the will is legally invalid, it can be challenged in court on the following grounds:
- That the will was not properly signed and witnessed
- That the person whose will is in question was not of sound mind when they signed the will, for instance drunk or delirious
- That the will-maker had a moral duty to provide for the person claiming that the will is invalid, for instance a dependent child that was in their care
- That someone had subjected the person whose will is in question to undue influence
If the court holds that the will is legally invalid, either an earlier will can be reinstated, or the estate will be distributed by the rules of intestacy.
The spouse or de facto partner can apply for a share in the estate under the Property (Relationships) Act. Since 2002, if a spouse feels that they have not been fairly provided for, they can make a claim for half of the relationship property. Making a claim under the Property Act does not affect your ability to make a claim under the Family Protection Act
A relative can apply to be provided for under the Family Protection Act 1955. The relatives that can make a claim to be provided for are:
- The spouse of the person whose will is in question
- Their child
- Their grandchild
- A dependant stepchild
- Their parent
In order to make a claim in this way successfully, the person making the claim must be able to prove that the person whose will is in question had a moral duty to provide for them. When considering this, the court will take into account:
- Whether anything was left to the person making the claim
- What the wishes of the deceased were
- The age of the person making the claim, along with their financial situation, ability to earn a living, and character
- Whether there is anybody else to provide for them
A person who was promised that they would be given an item, or be provided for can make a claim under the Law Reform Testamentary Act 1949. You can make this application to either the Family Court or the High Court depending on how serious you consider the matter to be. You need to provide good evidence for your claim, for example a letter or reliable witnesses to any verbal promises made by the deceased.
Can I challenge the will if I'm an adoptive child of the deceased?
If you were legally adopted by the deceased, then you are entitled to make a claim under the Family Protection Act.
However, if you are a child of a Māori adoption (adoption according to Maori customary values and practices), i.e. a whangai, then you don't qualify as their "child". (Keelan vs Peach).
Do I have to share an inheritance with my spouse?
There is no legal obligation to share an inheritance with your spouse. There are some ways you could keep an inheritance separate from your relationship property so that it can’t be claimed in the event of separation. Some steps you could take are:
- Keeping the inheritance separate from your relationship property
- Setting up a contract defining the inheritance as separate property
- A relationship property agreement
- A trust
If you would like advice on this, consult your local Citizens Advice Bureau.
What is a living will?
A living will is a document that tells doctors of your wishes in case you need to be kept on life support. A living will allows you to name what sorts of life support you would like to be used to prolong your life in case of terminal illness - if any - and in what situations you would like it used or not used as the case may be. A lawyer, the Public Trust, or community law centre will be able to help you make a living will.