Writing a will 


How can I ensure that my wishes will be carried out 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 you would like your funeral to be carried out, 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 it is a good idea to update your will when there are major changes to your personal or family circumstances).

A will is essentially a description of what you want to happen in the event of your death and a set of instructions to make sure your wishes are carried out. (If you wish to plan your own funeral, you can visit our funerals page for the relevant information.) 

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

Back to top

What is an executor?

An executor is someone who is responsible for seeing that - as far as reasonably possible - the instructions in your will are carried out.

The executor (or other appointed person) may also need to act in the role of a trustee on your behalf, with an on-going responsibility of administering your estate (or part of it) until it can be transferred into the ownership of the beneficiaries named in your will. This commonly occurs where a deceased person has stated in their will that their children are not to receive their share of the will until they reach a certain age, and the children have not yet reached that age at the time of the will-owner's death.

The executor/trustee for your will could be a family member or friend, or it could be a professional executor (e.g. your lawyer or a Trustee Corporation which provides wills and estates services). You could have one person undertaking both roles or more than one person sharing the responsibilities - it is up to you, but you should try to be as clear as possible about these matters in your will. 

When you have decided who you want to be the executor and/or trustee, it’s wise to consult with them so that they are aware of their responsibilities well in advance.

People with very large or complicated estates are often advised to appoint a professional executor and trustee as it may be a time consuming and complex task for a family member or friend to take on.

Back to top

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 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
  • 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.

Back to top

 
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
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. Some law firms will write a will for free for you if you already have other business with them.

Lawyers can also provide executor/trustee services for a fee. Again, as part of your background research find out how much this is likely to cost before making a final decision about who you will appoint to administer your will and estate.

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.

Use a commercial online wills service
The cost of these varies widely depending on the provider and the complexity of your will.

Doing it yourself 
There is nothing to stop you writing up your own will, and there are several write-your-own-will kits available from stationery and book retailers. 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.

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. Otherwise there is a risk of problems with the granting of probate, or that the legal validity of your will is challenged, at a later date.

Using the Public Trust's Simple Will Service
If you’re on a low income and you just need a basic will, you may be eligible for the Public Trust’s Simple Will Service.

The service allows you to create a basic will online, and for around $75 the Public Trust will process, witness and hold it for you. You can find out whether you are eligible by answering a few questions about your family income and what you need your will to cover.

Back to top

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:

  • If you don’t personally know the will-maker, ask to see some photo ID to confirm they are the named person 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.

Back to top

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).

Back to top

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

Inheritance 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. When you die, the money which each child would have received instead goes to their respective trusts. Each trust is administered by a trustee, who manages the money and invests it until, for example, the child reaches a certain age, at which point the child can take control of the investment.

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.

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.


Back to top

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 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 death, at which point the ownership of the property passes on to the will maker’s children.

Back to top

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 and has little legal force.

So, for example, a living will would clarify whether or not you would want to be resuscitated or have your life support system turned off under certain circumstances. Be aware that a doctor is not obliged to carry out your instructions. See this page on 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.