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)
法律改革（遗嘱承诺）法案1949 （对此种人士提供经济给予： 任何人士在死者生前曾向死者提供服务，而死者又曾明示或默示提供服务者将得到报酬，但提供服务者在死者去世前并没有得到答应的报酬）
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.
若一人去世时在没有拟定遗嘱，他的遗产将根据遗产执行法案1969内的规定，依新西兰高等法院批准的遗产执行书进行分配。 个人（通常是家庭人员如配偶、事实夫妻、孩童或死者的父母）可向法院申请为死者的遗产执行人。通常，若死者去世的时候没有任何在世的父母或儿女而仅有在世的配偶 或事实夫妻，其在世的配偶将获得全部的遗产。然而，若死者去世时有在世的儿女及配偶或事实夫妻，其配偶或事实夫妻只能获得三分之一的遗产、三分之二则归儿女所有。若您没有拟定遗嘱，您的家人需要在向法院申请当您的遗产执行人处理您身后事时招致非必要的时间和金钱。
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.
当您生命经过重大变化的时候，比方说您结婚或离婚了，买了房子，或您的遗嘱里所列的遗嘱执行人及/或受益人去世了，又或者是您的经济处境上出现了一些重大的改变，您是应该拟定新的遗嘱的。有些情况下您是必须重新拟定遗嘱的（如，旧遗嘱已经无效了）。新西兰的遗嘱法可以是很复杂的。我们建议您在拟定或更改您的遗嘱前先寻求专业法律意见。 Focus Law的专业律师团队可以帮助您拟定或更新您的遗嘱。
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.