The technical term for a will is ‘will and testament’, but ‘will’ is the term currently used to describe a legal document that outlines how a person's assets and property should be distributed after their death and it can include additional wishes regarding a person’s funeral or legacy.
A will in New Zealand must be in writing, signed by the will-maker and two witnesses, and intended to take effect as a will. It can include instructions for who should benefit from the estate, and can also provide for pets, charities, and others who might not normally be entitled to anything.
Wills are not just for those people who have a lot of assets. Every adult will benefit by having a will because the law is inflexible on what will happen to your assets and possessions if you die without one. Wills also provide you with the opportunity, even if you own very little in terms of assets, to leave mementos as memories for family and whānau members.
A will is not mandatory, but if someone dies without one, New Zealand law will dictate how their assets are distributed. This is known as dying ‘intestate’. How this will happen is set out in the Administration Act 1969 under section 77 – find out more about this Act here.
A will typically names an executor or executors, who is the person or organisation that carries out the instructions in the will. The executor has a legal duty to administer the estate in accordance with the will, unless the court orders otherwise or all beneficiaries are adults and direct the trustees to do something different.
Anyone who is of sound mind and at least 18 years old can make a will. It's recommended that adults with more than $15,000 in assets have a will, especially if they have kids, a house, or a significant amount of money in their KiwiSaver. A will should be reviewed and updated when there are changes in life, such as a new marriage, a change in financial situation, or the birth of a child.
Please note that marriage invalidates an existing will unless the existing will specifies otherwise.
Testamentary capacity is required to make a will. This is not the same as the capacity test to have a welfare guardian. Testamentary capacity refers to a person's mental ability to understand the nature of making a will, the extent of their property, who their potential beneficiaries are (the names of close relatives and their claims to their property), and the consequences of their decisions when creating a will; essentially ensuring they are of sound mind to distribute their assets upon death without undue influence. It's a key legal concept to validate a will in court if challenged after the person's passing.
If you are thinking of making a will for a person with FASD we recommend you get them to read an Easy Read resource from People First NZ first to help them understand what this means.
People First NZ is a Disabled People’s Organisation (DPO). On their website you can find information and resources to support disabled people. One of these Easy Read resources is a document entitled, 'How to make a will'.
Click here to access this.
