Wills: Seven Things Kiwis Get Wrong

There are some common myths about Wills in New Zealand that catch people out. Here are seven we hear regularly.

1. I don’t need a Will because all of my assets will automatically go to my partner/spouse.

While this can be partly true, it isn’t for all assets. Jointly held assets (such as a bank account or property held in joint names with your partner/spouse) can be transferred to the surviving partner/spouse, but any assets held in your individual name do not automatically transfer to your partner/spouse upon your death.

In New Zealand, when someone dies without leaving a valid a Will, this is called dying intestate. At this point, subject to potential relationship property claims by a partner/spouse, the deceased person’s sole-owned assets are dealt with via the Administration Act 1969, which sets out who would inherit their assets based on their family circumstances. This can see a partner/spouse left high and dry when a portion of a deceased person’s assets must be held for children they may have.

2. Guardianship of my children goes to who I want it to.

When a person with a young child/young children dies, guardianship of the child/children usually continues with the surviving guardian (so long as they already have guardianship). If you would like someone else to have a guardianship role, together with the child/children’s surviving guardian, you can appoint a testamentary guardian in your Will.

A testamentary guardian won’t automatically have day-to-day care of the child/children but will assume guardianship responsibilities with a surviving guardian of the child/children.

If you have a child or children and are no longer in a relationship with their other parent or want to make sure someone will have guardianship of your child/children if both you and their other parent die, you should consider appointing a testamentary guardian within your Will.

4. I won’t be there, so I don’t really care.

This is true; however, this view can create pressure and confusion for your family and/or friends dealing with your assets and estate when you pass away. Grief can cause people to act in ways that may not reflect who they are, so when you add confusion into these situations, tensions can rise which can affect ongoing family relationships.

Ensuring that your wishes are reflected in a Will can help to ease this confusion and tension for your family and friends you leave behind.

5. I have done a free online Will, I’m sorted.

It’s great that you have done a Will, but the next step would be to ensure that it is valid, effective and deals with everything that should be dealt with. There are strict rules around validity of a Will, so it is important to ensure that your family won’t be left dealing with the stress of an invalid Will upon your death.

Online Wills are sometimes limited in what they cover, and it’s important to take specific legal advice to ensure that your online Will deals with what it should. Blended families, family trusts, overseas assets or unequal gifts to beneficiaries should all be taken into consideration and should be dealt with after taking specific legal advice.

6. My family/friends know what I want

Again, when someone dies without a Will in New Zealand, there is legislation which stipulates what happens with their assets, subject to potential relationship property claims.

Beneficiaries of an estate can agree to a different division of assets than is stipulated, however this requires agreement of all beneficiaries, which can create tension.

This is why it is important to ensure that you have a Will so that your wishes are reflected in the division of your assets upon your death.

7. I did my Will 40 years ago, so I’m covered

Technically, yes, if you have executed a valid Will, it would remain valid until revoked. Wills can be revoked by the Will maker, or automatically upon getting married or entering into a civil union.

As your life circumstances change, you should review your existing Will. Marriage, children, property changes and relationship changes should all be prompts to review your existing Will as you may need to rethink how your assets are divided.

Visit our website – Wills done well – Review or Start your Will