How to sign, witness, and store your new New Zealand will

Making a valid will is easier in New Zealand than in many other countries. You don’t have to use a lawyer. You don’t have to register the will. Almost anyone can witness the will.

Even if you don’t get it right, the High Court still has the discretion to declare your will ‘valid’.

That said, if you use a lawyer and THEY get it wrong, someone who misses out as a result can potentially claim against the lawyer. If you do it all yourself, there’s no such backstop protection.

So do take care.

You may need specific legal advice in unusual circumstances or if the will-maker is unwell, has doubtful mental capacity, or is making a will that excludes people or is otherwise likely to be controversial and subject to challenge.

The following comments summarise the legal requirements for formal execution of a will, and external events that can change the will’s validity after it has been made. The contents of the will are not covered here.

Sign the will

1. Sign in the presence of both witnesses.
2. Use pen, in preference to pencil.
3. Sign your usual signature.
4. Your name as shown in the will should be consistent with your signature. (If your signature is ‘Barbara L Jones’, your name in the will should not be just ‘Barbara Jones’.)
5. Initial the bottom of every page that is not the signature page.

Witnessing your will

1. Anyone over 20 can witness your will.
2. Two witnesses –
   1. must be in the same room when you sign your will
   2. must be able to see you signing
   3. must see each other signing
   4. you must see them signing
   5. must not be anyone who benefits under the will (if they are, the gift to them lapses unless the High Court reinstates it)
   6. must not be married to, or in a civil union with, or in a de facto relationship with, anyone who benefits under the will (if they are, the gift to their partner/spouse lapses unless the High Court reinstates it)
3. Your witnesses need to know that they are witnessing your will. They do not need to read the will or know what the will says.
4. If you are unwell or infirm, it is prudent to ensure that – if asked – the witnesses are able to confirm that you read the will (or it was read to you) and you understood what you were signing.
5. If you are physically unable to sign the will yourself, you can direct someone else to sign on your behalf in your presence. However, the wording has to  change slightly – get back to me if that applies.
6. Initial the bottom of every page that is not the page with full signatures.
7. Witnesses should also initial the bottom of every page that is not the page with full signatures.
8. Add the date.
9. If you make a mistake, cross it out and sign the correction.  Witnesses must also sign the correction. Sign, not just initial. (Even then, there can be complications later. It’s better to print another copy without any mistakes.)
10. Sign only one original will.  (It is a mistake to sign more than one original just in case one gets lost. If there is more than one original, the court requires your executor to submit all the originals or to account for any that have been lost.  So it creates more complications, not fewer.)
11. The will ought to contain a statement to the effect that the will-maker signed the will in the presence of the witnesses and the witnesses signed the will in the presence of the will-maker. The exact wording does not matter, as long as the meaning is the same. If there is no such wording in the will itself, the High Court will require a supporting affidavit from the witnesses .

After the will is signed

11. Make some copies if you want to give them to your executor or family members.
12. Staple the will. Then do not unstaple it – ever!
13. Keep the will separate from any other documents. Do not clip or pin it to anything else – not even a covering note. Any clip marks or indentations may require a supplementary affidavit when probate is applied for – because the High Court will need to be satisfied that nothing else was attached to the will that may have made a difference to what the will-maker wanted.
14. Maybe keep it in a plastic sleeve, separate from everything else but easily seen.
15. Do not write anything on the will. Any marks or additions will make things more complicated. The High Court will need evidence as to whether the marks or additions were there before the will was signed.
16. Keep it somewhere safe. Your executor will need the original hard-copy will. You can keep a scanned copy online if you want to, but the law requires the original hard-copy will to be presented for probate. If the original hard-copy will is lost or destroyed, things become more complicated and more expensive.
17. Ensure that your executor knows where it is.
18. One option is to deposit it with your local office of the Public Trust. This is a free service set up by statute under the Public Trust Act (section 130).  The law requires the Public Trust to allow you to uplift it again if you want to, and your executor to uplift it after your passing.  (You may be given misinformation from their call centre if you phone to enquire. They do not publicise this service and some of their staff think this is only available if you use Public Trust to make the will or if you appoint the Public Trust as executor. If necessary, talk to a manager and/or refer them to the statute.)  
19. You can potentially register the existence and location of your will on NZ Will Registry, but only through a lawyer. (We do not yet provide this option. It is on our ‘To Do’ list. Contact us if you would like us to move it up the list.)
20. If your spouse is an executor or beneficiary, their role lapses if you get a separation order or dissolution order after you make your will. The will is then read as though they had died. However, if you separate informally, without a court order, their role continues unless you revoke your will or make a new will.
21. If you marry or enter into a civil union after making your will, your will lapses. (Exception: if the will was made in contemplation of that marriage to that person. This may be stated in the will, or it may be clear from evidence of the circumstances when the will was made.)
22. If you want to change your will, you can make changes by hand, as long as they are signed and witnessed in the same way as for a will. That includes having a clause that specifies that the witnesses were present when you signed the changes, and that you were present when the witnesses signed. ( However, significant changes are best achieved by making a new will.)

If you want to cancel (revoke) your will, you can do it by tearing it up or otherwise deliberately destroying it. However, I suggest you make a new will, so there is no doubt of your intentions. If you simply destroy the existing one, someone may still try to use a copy.

More about wills – on Kiwilaw’s page

Cheryl Simes – 24 November 2020