Frequently Asked Questions

Wills – Frequently Asked Questions

Here you’ll find answers to our most commonly asked questions about Wills. If you’ve got a question that isn’t covered here our specialists can help, please click here to get in touch with us.

1. What makes a Will valid?

To be considered valid, a Will must be written by someone of sound mind who is not being coerced or unduly influenced.
It needs to be signed by the person making the Will and dated and witnessed by at least two people who are not beneficiaries of the Will.

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2. Who can make a Will?

Anyone who is of sound mind and is aged 18 or older, the consent of a Family Court judge is required for anyone under 18 wanting to make a Will.

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3. Where should I store my Will?

If Public Trust writes your Will, we’ll keep the original in safe storage and give you a copy.  It’s a good idea to keep your copy with other important documents like your birth and marriage certificates or passport.

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4. When should I update my Will?

We recommend reviewing your Will every year to make sure it’s still up to date.

If your circumstances have changed (perhaps you’ve bought a new house, gotten married/divorced or had a baby) then you should definitely consider updating your Will.

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5. Can I update my Will myself?

You shouldn't try to change your Will by altering one you've already made – this might make it invalid. The best way to update your Will is to get a new one professionally prepared; this should include a clause to state that all previous versions of your Will are cancelled.

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6. Can I cancel my Will?

Yes. We recommend doing this by executing a new Will that revokes your previous Will.

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7. What happens if someone dies without making a Will?

This is called dying intestate. If you die without a Will, everything you own will be divided up according to the law (the Administration Act 1969), not according to your wishes. The rule of the Act vary depending on whether; you’re survived by a spouse or partner, have children or  

The people you care about most may not be looked after, and it could take a long time and cost a lot of money to resolve matters. This could cause extra distress for your loved ones, during their time of grief.

The rules of the Administration Act 1969 vary depending on whether; you’re survived by a spouse or partner.

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8. Do I need to write a Will to nominate guardians for my children?

A guardian is the person you choose to care for your child in the event that both parents are no longer able to do so. Naming a guardian is another valuable benefit that a Will can provide. It is important that you should not name anyone to be guardian, without first asking if they are willing, comfortable and accepting of the responsibility this holds.
A testamentary guardian (guardian named in a Will) makes the 'big decisions' when the parents can't - for instance about the child's education and care. For day-to-day care of a child, the testamentary guardian may need to apply to the Court for a parenting order.

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9. What happens if I die without enough money to cover all my bills and debts

This is called an insolvent estate and means the estate has to pay off any outstanding debts before anything is given to people named in the Will, or until the money runs out.

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10. What is an Executor of a Will?

The Executor is a person or organisation you choose and are responsible for carrying out the wishes in your Will as smoothly and efficiently as possible.
Responsibilities of an Executor include applying for Probate (getting court approval to handle the estate), locating all beneficiaries, collecting and selling assets and paying estate expenses. The duties expected of an Executor can be difficult, demanding and time consuming. Public Trust can help you with this through our Executor Assist service.

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11. What is a Trustee?

The Trustee is a person or organisation responsible for holding your assets until they can be paid to the beneficiary. For example where a beneficiary of a Will is a child and the estate is invested until they come of age (20 years of age).  The roles of Executor and Trustee are usually combined.

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12. What could make a Will invalid?

A number of things can impact the validity of your Will so please check with us if you’re not sure.

If any of the following apply to you it’s likely you’re will is no longer valid:

  • If you have married since the Will was made
  • If your Will isn’t signed and witnessed properly
  • If there was some undue pressure or influence when making your Will
  • If you were not of sound mind
  • If you were under 18 when you made the Will (and the Will was made without the Court's consent)

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13. Can a Will be challenged or contested?

Yes, if there are doubts around the validity of the Will. Other reasons a Will may be challenged include if:

  • A person you had a responsibility to provide for believes you haven't left them a fair share or haven’t made adequate provision for them. This could be a close relative such as a spouse, child or stepchild, grandchild or parent. In this case the relative would have the right to apply to the Court under the Family Protection Act
  • A person has been promised a reward in the Will for their services and that promise is not kept, it could be challenged under the Testamentary Promises Act
  • A spouse or partner isn’t satisfied with what they have been left and wishes to challenge the Will under the Property Relationship Act.

A Will must be challenged in the High Court within 12 months of probate being granted.

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14. When do I need to update my Will? If...

ReasonUpdate required?
I've had a first childYou should update your Will to name a guardian for your child and also to consider how to provide financially for their care. 
Had another child or a  grandchildThis depends on how your Will is written, if your existing Will provides for future children (i.e. "to my children, including...") , there is no legal reason to change though it does make the estate process more streamlined. We find that customers often wish to specifically name a new child so that they do not feel left out later on.
MarriageYes, unless your current Will was drafted in contemplation of getting married...
SeparatedUnless an adequate separation agreement has been put in place, your last Will may still apply.  It is important to update your Will at the earliest time possible to ensure your beneficiaries are current.
Divorced
(dissolution of marriage)
Divorce will not cancel your Will but rather it will effectively remove your former spouse as a beneficiary in that Will and continue on to the next level.  However as divorce often means a major change to a persons life in more ways than relationship status, we recommend that your Will is updated to reflect your current situation.
New partnerThere are certain rules around what a partner can expect to receive depending on a number of factors - the primary one being length of relationship.  Whether or not you wish to include your partner as a beneficiary in your Will it is important to get the right advice and update your Will, or obtain further advice, where necessary.
Death of a beneficiaryIt is important to review, and in many cases update your Will, to ensure that the deceased beneficiary's share of the estate now goes to the right place.  For example, where a person has not provided a gift over to the children of the deceased, say grandchildren, those grandchildren may miss out while ultimately their cousins will inherit when their respective parent passes away.
Beneficiary has changed their nameThere is no legal reason to change though it does make the estate process more streamlined, therefore saving time.
Change to guardian for my childrenYes.  It is important to make sure that this remains current as the wrong testamentary guardian for your child or children cannot be changed once you have gone.
Add / change a giftIt is important to talk through the options for leaving gifts to ensure that you have the most efficient way of getting these gifts to the right people.  This may or may not mean a change to your Will is required.
Write someone out of a WillYou will need to update your Will if you wish to remove a beneficiary.  Your specialist adviser will be able to talk through any potential implications of removing a beneficiary and any other options which may be available to you.
Change to assetsYes, if you have left (or wish to leave) specific gifts of those assets to particular beneficiaries, such as a named house to a beneficiary, or a specific bank account or life insurance policy.

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15. Why could a Will be deemed invalid?

  • If you have married since the Will was made
  • If it is not signed and witnessed properly
  • If there was some undue pressure or influence when making your Will
  • If you were not of sound mind
  • If you were under 18 when you made the Will (and the Will was made without the Court's consent)

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16. When can a Will be challenged?

As well as the points listed above, a Will may be challenged if...

  • a person you had a `responsibility' to provide for, believes you haven't left them a fair share of your assets / have not made adequate provision for them. This would normally be a close relative such as a spouse, child, grandchild or parent. In this case the relative would have the right to apply to the Court under the Family Protection Act
  • step children may also challenge a Will if they were being wholly or partially maintained by you at the time of death
  • a person has been promised a reward in the Will for their services and that promise is not kept, the Will can be challenged under the Law Reform (Testamentary Promises Act)
  • if a spouse or partner wishes to challenge the Will under the Property (Relationships) Act if they are not satisfied with what they have been left under the Will.

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17. How does someone challenge a Will's validity?

A Will must be challenged in the High Court. As soon as a person decides to challenge a Will they should file a caveat (warning) with the High Court. A caveat must be lodged prior to the granting of probate. This means that when the executor applies to the High Court for probate of the Will, they are required to notify that person and serve copies of the documents on them. The person making the challenge is then a respondent to the application, and can file documents with the Court to make their case.

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18. How long do you have to contest a Will?

A claim must be filed in the Court within 12 months of the grant of probate (or date of death if no probate).  The Court can extend this timeframe but not if the estate has already been distributed.

An executor may distribute the estate after 6 months if they have not received notice of any claim.  If a claim is notified to the executor after this time, the executor is protected (for having made that distribution) and the claimant would need to apply to the Court to follow the assets distributed.

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19. Do I need a Will if my spouse and I hold all our assets in joint names?

Although joint property passes to the surviving joint owner by right of survivorship, we would still recommend that you make a Will.  This would make provision for the division of your estate in the event that you and your spouse die more or less at the same time as a result of a common disaster, such as a motor vehicle accident.

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20. What happens if I have assets overseas as well as in NZ?

If you only have investments or bank accounts abroad, in most situations your New Zealand Will should cover them.

If you have a house/flat or land abroad, however, then you will almost certainly need to make a Will in that country.  You also need to remember that the taxes applying upon death and/or the sale of assets may be different in each country and should be taken into account when drafting Wills. 

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21. What is a 'Living Will'?

A 'Living Will' is a written document that gives direction to family members or loved ones about the decisions you would like them to make if illness or an accident means that you ever end up on life support.

In New Zealand, there is no legal recognition of a Living Will however family members may find them useful.  It is not an alternative to an Enduring Power of Attorney.

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22. What is an Enduring Power of Attorney and how does it differ to a Will?

Enduring powers of attorney are important legal documents that set out who can take care of either your personal or financial matters if you can't due to illness or an accident.  Please refer to our Enduring Power of Attorney pages for more information.

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23. What happens if I die without enough money to cover all my debts?

This is called an insolvent estate.  The estate has to pay off any outstanding debts in a set order before anything is given to people named in the Will, or until the money runs out.

Family members and heirs are not responsible for the debt of a deceased family member if the debt was only in the name of the deceased. This includes anything from a loan to a credit card. Although family members are not responsible for this debt it must still be repaid from the estate of the deceased before any payments to beneficiaries. The estate includes anything from cash and money in bank accounts to insurance money, property, vehicles, household items and investments.

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