What is a Will?
A Will is an ambulatory document – a legal document that you may amend as many times as you wish during your lifetime as things change. It takes effect only after your death. A Will is your financial deposition to your love ones and a set of instructions on how your assets are to be distributed and as well as directions on funeral & burial matters.
Why do we need a will?
Our future is uncertain, so we need to plan ahead. A Will is your set of instructions for the future – it saves your loved ones time, energy and costs as they attend to matters concerning your estate after you passed away.
Who may claim under your will?
Whilst the common law position is that a testator has testamentary freedom in how he or she wants to part with her assets after death, this freedom is somehow restricted in New Zealand.
New Zealand law provides that a Will shall provide for your spouse, de facto spouse, family members and dependants. A person who has not been mentioned in your Will may also have the right to claim against your estate. The relevant legislations are:
- Properties (Relationships) Act 1976 (Providing for the de facto partner or spouse)
- Family Protection Act 1955 (Providing for the Immediate Family)
- Law Reform (Testamentary Promises) Act 1949 (Providing for any persons who have been given an express or implied promise by the decease that his or her service would be remunerated, who had rendered service to or performance for the deceased in his lifetime but did not receive the reward before the deceased’s death)
I already have a will in China, is it easily recognised in NZ?
The law on Wills is specific to each jurisdiction. There are specific formality requirements for a Will to be legally recognised in New Zealand. Wills drafted overseas may or not may comply with local requirements. If they do not comply with the local requirements then they may not be recognised by the New Zealand Courts. Moreover, even if a Will complies with local laws, if it is drafted overseas there may still a need to go through the process of proving the Will in a New Zealand court. In order to save time, costs and hassle, you may want to have a Will drafted here for local use.
What if I don’t have a will?
If you die without a will, your estate will be distributed according to the Wills Administration Act 1969. A Letters of Administration will be obtained and your assets be distributed pursuant to an order of the High Court of New Zealand. Individuals (usually family members such as spouse, de facto partner, children or parents of the deceased) may apply to court to be the deceased’s administrator. Generally speaking, if a person dies without any parent or child, the living de facto partner or spouse of the deceased takes everything. However, if the deceased dies with living children and de facto partner/spouse, the de facto partner/spouse would only take one-third of the estate and the living children takes two-thirds. If you do not have a will, unnecessary costs will be incurred and time wasted by your family members as they have to apply to court to be your administrator.
When should I have a new will?
You should change your Will whenever you have gone through a major change in your life, for example, if you got married or divorced, bought a property or if a person named in your Will as executor and/or beneficiary has died, or it may also be that there is a major change in your financial position. There are also situations when you must draft a new Will, i.e. when your old one has been revoked. To err on the safe side, we recommend you review your existing Will with us every five years. The law can be complex in this area and we urge you to take professional legal advice and Focus Law is here to help you to draft or renew your Will.
Please note that this article is intended for general use. It does not constitute legal advice. If you wish to obtain further relevant information on this topic, please contact our professional team at Focus Law.