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Making a Will: Why you need one and what makes it valid

Key Takeaway

A New Zealand Will is a legal document that outlines how a person's assets will be distributed after their death and can appoint guardians for children. Without a valid Will, intestacy rules dictate asset distribution. A Will must meet specific legal formalities, including being in writing, signed by the testator, and witnessed by two people.

A Will is a legal document that sets out how a person (known as the testator) wishes for their property (known as their estate) to be distributed and managed after their death [Source: Wills Act 2007, s 4]. It can also include instructions such as appointing guardians (individuals legally responsible for the care of minor children) and funeral wishes.

Why a Will is Important

If a person dies without a valid Will, they are said to have died intestate. In such cases, their estate will be distributed according to specific rules set out in legislation, rather than according to their personal wishes [Source: Administration Act 1969, Part 3]. This can lead to:

  • The estate being distributed in a way the deceased person would not have chosen.
  • Potential disputes among family members.
  • Delays and increased costs in administering the estate, as the High Court may need to appoint an administrator (a person appointed by the court to manage and distribute the estate of someone who died intestate) [Source: Administration Act 1969, s 6].

What Makes a Will Valid in New Zealand?

For a Will to be legally valid in New Zealand, it generally must meet specific formal requirements:

1. Capacity

The testator must have the necessary testamentary capacity, meaning they must be 18 years or older (or married, in a civil union, or in a de facto relationship and at least 16) and of sound mind. This means they must understand the nature and effect of making a Will, the extent of their property, and who the potential beneficiaries are [Source: Wills Act 2007, ss 8, 9].

2. Formalities

Most Wills must be in writing and signed in a particular way:

  • In Writing: The Will must be a written document [Source: Wills Act 2007, s 11(1)(a)].
  • Signed by Testator: The testator must sign the document, or it must be signed on their behalf in their presence and by their direction [Source: Wills Act 2007, s 11(1)(b)].
  • Witnessed: The testator's signature must be made or acknowledged by the testator in the presence of two or more witnesses who are together at the same time [Source: Wills Act 2007, s 11(1)(c)].
  • Attested by Witnesses: Each witness must attest (confirm the signing) and sign the Will in the testator's presence. There is no requirement for witnesses to sign in each other's presence [Source: Wills Act 2007, s 11(1)(d)].

3. Dispensing with Formalities

In some circumstances, the High Court has the power to declare a document that does not meet all the formal requirements to be a valid Will, provided the document appears to express the deceased's testamentary intentions [Source: Wills Act 2007, s 14]. This power is used when it is clear that the deceased intended the document to be their Will.

Key Roles in a Will

  • Testator: The person making the Will.
  • Executor: The person or people appointed in the Will to carry out its instructions, manage the estate, pay debts, and distribute assets to the beneficiaries [Source: Wills Act 2007, s 3(1)]. An executor applies for probate (the official proving of a Will) from the High Court [Source: Administration Act 1969, s 6].
  • Beneficiary: A person or entity who receives a gift or benefit under the Will [Source: Wills Act 2007, s 3(1)].

What a Will Can Cover

A Will can specify:

  • How all assets, including real estate, money, investments, and personal possessions, are to be distributed.
  • The appointment of guardians for minor children [Source: Wills Act 2007, s 3(1) (definition of 'will' implicitly includes guardian appointment)].
  • Specific funeral arrangements, although these are generally not legally binding, they provide guidance to loved ones.
  • Charitable bequests or donations.

Challenging a Will

A Will can be challenged on several grounds. Common grounds include:

  • Lack of Capacity: Allegations that the testator did not have the mental capacity to make a Will [Source: Wills Act 2007, s 8].
  • Undue Influence: Claims that the testator was pressured or coerced into making the Will [Source: Common Law principle applied in estate cases].
  • Lack of Proper Provision: Claims by certain family members (e.g., spouse, children, grandchildren, de facto partner, stepchildren) that the Will does not make adequate provision for their proper maintenance and support. These claims are made under the Family Protection Act 1955 [Source: Family Protection Act 1955, s 3].

Revoking a Will

A Will can be revoked (cancelled) in several ways:

  • By a New Will: Making a new valid Will typically revokes any previous Wills, either expressly or by inconsistency [Source: Wills Act 2007, s 15(a), s 16].
  • By Destruction: Intentionally destroying the Will, or having it destroyed in the testator's presence and by their direction, with the intention of revoking it [Source: Wills Act 2007, s 15(b)].
  • By Marriage or Civil Union: Marriage or entering into a civil union generally revokes an existing Will, unless the Will was made in contemplation of that marriage or civil union [Source: Wills Act 2007, s 18]. Entering a de facto relationship does not revoke a Will.

When to Seek Independent Legal Advice

Persons considering making or updating a Will, or those involved in the administration or challenge of an estate, often benefit from seeking independent legal advice. Legal professionals can ensure the Will accurately reflects their intentions, meets all legal requirements, and can advise on specific situations and potential claims. Community Law Centres across New Zealand offer free legal assistance for those who meet their criteria. Information is also available from the Citizens Advice Bureau.

Key Resources