September 2021

The old saying ‘You get what you pay for’ generally rings true.

It’s quite easy to find yourself a ‘free will’ online now. Unfortunately, in endeavouring to generate business, a ‘free will’ devalues one of the most important documents a person will ever make – a will. Worse, the product may not be achieving the outcome that is best for you and your circumstances.

Based on anecdotal evidence half of Kiwis do not have a will.

Based on hard evidence many Kiwis don’t have an up-to-date will.

For over a decade we have reviewed all sorts of DIY and ‘free’ wills. More times than not, significant issues arise when the willmaker dies and their estate is being administered. Unfortunately, at that time, there are no easy fixes without all potentially affected parties agreeing on how to resolve those issues or recourse to the High Court.

So, what issues have arisen? The following are some of them:

• Clear and detailed instructions from a willmaker, including whether they are in a relationship and the status of that relationship, are not taken.
• Full details of assets and liabilities, and who owns what and how, have not been ascertained.
• Whether a willmaker has overseas assets and has been advised to seek advice from a lawyer in an overseas country.
• If someone is being excluded, whether detailed reasons are recorded including relevant factors a judge would consider in terms of a claim for provision.
• Whether the willmaker has made a previous will and, if so, checking that there aren’t any legally enforceable restrictions on what the willmaker can do in a new will.
• The need for tailored advice to the client’s situation including considering balancing the interests of a spouse or partner and children from a previous relationship.
• Advising a willmaker that having an executor resident overseas can have tax implications and may require Overseas Investment Office consent to change ownership of real estate into the name of the executor.
• The willmaker has not been referred for a medical examination to determine if they have ‘testamentary capacity’ (capacity to make a will) and won’t be the subject of challenge in the future.

The list could go on….

Although some challenges to wills are unavoidable, many are. Some of the examples have cost a person’s estate and, therefore their family, thousands of dollars.

Sometimes trusts are created by a will

Common examples of these are where part of an estate is left to beneficiaries who are children (under the age of 18), life interests and discretionary trusts for a child with a disability or special needs.

If your will creates a trust, then the Trusts Act 2019 which came into effect on 30 January 2021 applies. As a result, a willmaker will need to understand trustee duties, any changes to them, and limitation and indemnity provisions. Issues may arise with the administration of trusts created by wills if these matters are not given careful consideration and tailored advice.

For a will to be personal to your situation, it should be given more time and attention than simply filling out a form. A will is one of the most important documents you will ever make and, as such, clear and detailed instructions should be taken, tailored advice provided and the willmaker should understand what they are signing.

If you do not have a will, or have an out of date one, please contact your lawyer to arrange an appointment today.