Why do I need a will, and can’t they be challenged anyway?

Wills don’t only provide for how your property is distributed but can also address such issues as who will have legal authority to look after your children (“testamentary guardians”), instructions on how you would like your funeral conducted and whether you wish to be buried or cremated. Making these matters clear can save your family a lot of stress and anxiety - at a time which will already be difficult for them.‍

What happens in law if I don’t have a will?‍

People who die without a will leave behind a complex task for someone else to deal with. The next of kin, a lawyer, or an agency such as The Public Trust Office, needs to be appointed as the deceased’s “administrator”. 

For small estates (which has no more than $15,000 in cash and/or $15,000 in other categories of property such as kiwisaver investments), the next of kin can administer the estate. Administering includes selling and distributing property and undertaking tasks such as closing bank accounts. 

For estates that exceed the $15,000 rule, a court is required to appoint the administrator of the will. A relative or friend can apply to be the administrator, but that person needs to demonstrate they have the knowledge and ability to fulfill the role and that they have the consent of those closely related to the deceased. It is also necessary to undertake a procedure to see if the deceased had lodged a will (for example with a law firm) and that investigations of accounting for all children have been undertaken. In most cases these tasks will be undertaken by either the Public Trust Office or a lawyer as the paperwork and duties involved is rigorous and there are detailed rules and procedures imposed by officials overseeing each case.

In the absence of a will, the law provides clear rules on who will inherit property, and these rules are designed around whether the person had siblings, a spouse, children and whether there was a blended family with stepchildren. If it is found that a person has no next of kin, then the estate is handed over to the Crown (the government). 

If a person has left a will but not named an executor, or that person too has died, then the High Court will need to appoint an administrator.

What information is usually part of a will?

Wills usually begin by appointing executors and trustees. The executor is the person who submits required paperwork to the High Court to be “granted probate”. The purpose of probate is to examine the will and ensure a range of procedures are followed so that the will can be declared valid by Ministry of Justice officials. Being granted probate enables the executor to deal with the estate.

The role of trustees is that once probate is granted that person or persons become the legal owner of the estate and must distribute it according to the will. 

Usually, a will allocates the role of executor and trustee between the deceased person’s lawyer and a close relative. Before you appoint someone to that role it is important to obtain their agreement.

Wills usually contain the names of those who are to inherit your property and possessions. You may also want to include other categories such as family trusts, charities, or other organisations you wish to donate funds to.

Other important matters relate to instructions on how you want your body dealt with after death (either burial or cremation), any funeral instructions you may wish to make, and whether you want to leave your body or organs for medical use or for medical research.

At the time of making a will it is also useful to also put in place enduring powers of attorney; these are legal documents that outline who can make decisions in respect of your financial or medical care if you are no longer able to make such decisions yourself. 

Procedure for making a will

A person must be 18 years or older and in sound mind to make a will. It must be in writing and signed by two witnesses. The law requires that the person making the will and the two witnesses are physically together at the time the will is signed. 

In special circumstances an invalid will can be given effect to by the High Court, and it should be noted that some special video conference witnessing procedures were provided for during the lockdown phase of the Covid-19 regulations.

The original of your will is usually held in safe keeping by your lawyer, although it is also useful to keep a copy yourself with your personal papers.

After a will is signed, update it regularly.

If you made a will and subsequently have married or entered a civil union, your will is no longer valid. However, if your marriage or civil union ends, your will only becomes invalid if you obtain a formal dissolution. The existence or ending of a de facto relationship has no bearing on the validity of a will, though there are means for de facto partners to seek benefit from the High Court.

From time to time, you should review your will, as it will remain valid even if your family circumstances have changed significantly.

You can amend or completely revoke your will at any time. Any changes must be made following the same procedures as making a will.

Can wills be challenged?

There are number of ways a will can be challenged in court. 

Legislation called The Family Protection Act, specifies certain family members who you are considered to have a moral duty to provide for. The circumstances need to be assessed in detail in each case, but the range of people include your spouse to great grandchildren, your parents, and stepchildren.

There are other ways a will can be challenged, for example that the person making the will was not of sound mind at the time, or that there was undue influence over them. Others may claim that you promised to provide for them in exchange for services or work they provided to you during your lifetime.

Risks of having a will challenged after your death can be reduced by seeking legal advice when having your will prepared.

What happens on my death?

The executor of your will is responsible for making a comprehensive list of all your property, and for completing necessary transactions such as selling properties, paying off debts and allocating property according to the intention recorded in the will. They are also responsible for the proper disposal of the deceased’s body, though this is usually implemented by the family.

The procedures of gaining probate, distributing property to those who inherit and closing the affairs of the deceased can be significantly sped up if the will is up to date and information on property, family contact details and other information is regularly reviewed and updated.

Lawyers and others charge the estate for their services involved in obtaining probate and administering the estate. These costs too are lower if your affairs are well documented. A person who dies without a will may well mean a year or more will be required before probate is gained and distribution of the estate is completed.

How to get things moving

If you don’t have a will, it is highly recommended that you do not further delay getting one. Call or email LegalFocus Ltd and ask for an appointment to discuss making a will. To assist the discussion, you will be sent a questionnaire about your property and your wishes that will ensure that the discussion is well informed and focusses on those matters of importance to you. 

It is also suggested you discuss at your appointment putting in place enduring powers of attorney, which specify who can make decisions in respect of your financial or medical care if you are no longer able to make such decisions yourself. Click here to see our full range of Legal Services available.