Is my Will up to Date?

Thursday 9 April 2020

Is my Will up to Date?

With all the concerns regarding Convid-19, it may be appropriate to consider whether you have an up to date Will.

In New Zealand, if you die without a Will, your assets will be distributed in accordance with the statutory formula. For example, if you have a partner/spouse and children, then one third will go to your partner/spouse and two thirds will go to your children. Different entitlements will apply, depending on whether you have a partner, children, parents, and siblings.

Having a Will means that you will decide who will be your beneficiaries and how much they will receive when you die.

In New Zealand there are very strict rules regarding signing of Wills. There must be two witnesses present who must be there to witness the rule maker signing the Will. The witnesses must also sign the Will and acknowledge that the will makers signed the Will in his or her presence. The witness must sign the document in the will maker’s presence as well.

A Will that does not comply with the above signing requirements will not be valid unless it is declared to be so by the High Court of New Zealand. The High Court will not make an order unless it is satisfied that the document expresses the deceased person’s testamentary intentions. In order to be satisfied of that, the Court must receive evidence of the signing and witnessing of the document, the deceased person’s testamentary intentions, and evidence of statements made by the deceased person.

In other words, if a Will is not witnessed in accordance with the normal requirements, the process for declaring the Will valid would be a more difficult and costly one.

Witnessing means a person has to be physically present with the Will maker when they sign the Will. One can imagine that if the will-maker is confirmed as carrying the Convid-19 virus, witnessing requirements will be impossible to meet.

If you have any questions or you wish to update your Will, please contact Teresa Chan at Teresa Chan Law.

Teresa Chan

23 March 2020

Note: Since writing the above article, NZ has gone into Covid 19 Level 4 lockdown. Having wills signed and witnessed will now present new challenges. It may be argued that getting a will done is essential service. The NZ Law Society is looking into this and may put out some guidance to practitioners. Please contact us if you feel it is important to update your will before Level 4 is lifted. -- 9 April 2020

Updated on 17 Apr 2020: New rules starting from today 17 April 2020 stating that wills may be signed at the direction of a person and witnessed remotely by witnesses using audio-visual means. Note there are very specific requirements as to signing and witnessing. It applies only during lockdown. -- 17 Apr 2020

This article is for general use only. Advice should be sought for specific circumstances. Please consult Teresa Chan at Teresa Chan Law Limited, Level 3, Westpac Building, 106 George Street, Dunedin 9016, ph. 477 1069, or email teresa@tchanlaw.co.nz