To write a valid will in New Zealand, you must be at least 18, of sound mind, and sign your written will in the presence of two independent witnesses who also sign it. This legal document directs how your assets are distributed after your death and appoints an executor to manage your estate.
What are the legal requirements for a valid will in New Zealand?
For your will to be legally enforceable, it must meet specific criteria set out in the Wills Act 2007.
You must be at least 18 years old when you sign it. You must also have 'testamentary capacity'. This means you understand the nature of making a will, know the extent of your property, and can comprehend the claims of those who might expect to benefit from it.
The will must be in writing. You must sign it at the end of the document in the presence of at least two witnesses. These witnesses must also sign the will in your presence, confirming they saw you sign it.
Step-by-step: How to write and finalise your will
Follow this process to create and execute your will correctly.
1. Take inventory of your estate
List all your assets and liabilities. Assets include property, bank accounts, investments, vehicles, and personal items of value. Liabilities are your debts and loans.
2. Choose your executor
Your executor is the person you trust to carry out the instructions in your will. Their duties include locating the will, applying for probate, paying debts, and distributing assets. You should discuss this responsibility with them beforehand.
3. Decide on your beneficiaries and gifts
Clearly name the people or organisations who will receive your assets. You can leave specific items (legacies) to individuals or divide the 'residue'—what's left after debts and specific gifts—among beneficiaries.
4. Provide for guardianship of minor children
If you have children under 18, you can nominate a guardian in your will. The court will consider your nomination, but the final decision rests with the court.
5. Draft the document
You can use a clear template or seek professional help to draft the will. Ensure the language is unambiguous. A well-drafted Last Will and Testament template can provide a solid foundation.
6. Sign and witness the will correctly
Gather two eligible witnesses. In their presence, sign the will at the end. Then, each witness must sign it in your presence, adding their name, address, and occupation. All parties should be together for the entire signing.
Who can and cannot witness a will in NZ?
The rules for witnesses are strict to prevent conflicts of interest.
Witnesses must be mentally competent and at least 18 years old. Crucially, a beneficiary of your will, or the spouse or civil union partner of a beneficiary, must not act as a witness. If they do, any gift to that beneficiary may be void.
Your chosen executor can be a witness, but it is generally not advisable due to potential conflicts. The witnesses' sole role is to attest that they saw you sign the document and that you appeared to have testamentary capacity.
What is the role of the executor?
The executor is responsible for administering your estate according to your will.
Their key tasks include locating the original will and applying for a Grant of Probate from the High Court if required. They must identify, secure, and value all estate assets. They pay any valid debts, taxes (like any final income tax), and funeral expenses from the estate funds.
Finally, they distribute the remaining assets to the beneficiaries. An executor may need to seek legal or financial advice, especially for complex estates, and they are entitled to be reimbursed for reasonable expenses from the estate.
When is probate needed for a deceased estate in New Zealand?
Probate is the High Court's official confirmation that your will is valid and that the executor has the authority to administer the estate.
It is typically required when the deceased owned significant assets solely in their own name, such as a house or large bank balances. Financial institutions and Land Information New Zealand usually require sight of the Grant of Probate before they will release or transfer such assets.
Probate may not be needed for small estates or for assets owned jointly (like a jointly-owned family home), as these usually pass directly to the surviving joint owner.
What happens if you die without a will (intestate)?
If you die without a valid will, you die 'intestate'. The Administration Act 1969 determines how your estate is distributed.
A court will appoint an administrator to handle your estate, not your chosen executor. Your assets will be distributed according to a statutory formula: first to a spouse or partner, then to children, then to other relatives. This process is often slower, more costly, and may not reflect your personal wishes. It also does not allow for specific gifts to friends or charities.
How to safely store and update your will
Once signed, keep your original will in a safe, known place.
Options include storing it with your lawyer, in a bank safety deposit box, or in a secure home safe. Crucially, you must inform your executor of its exact location. You should review your will every few years or after major life events like marriage, divorce, the birth of a child, or a significant change in assets.
To make changes, you can create a formal addition called a codicil, which must be signed and witnessed with the same formalities as a will. For substantial changes, it is usually safer and clearer to write a completely new will, which should revoke all previous wills.
Next step
To begin the process, use a professionally drafted template to ensure your will meets all legal requirements. A clear Last Will and Testament template provides the structure you need to formally record your wishes.
