You can check your existing will has been correctly worded, and signed correctly, under New Zealand law - and also check it is consistent with the title of your house
...A quick check by Kiwilaw can avoid expensive legal complications after you die
Ask Kiwilaw to check one or both of these crucial points now
Signing and witnessing
Has your will been signed and witnessed correctly according to New Zealand law?
If your will is not legally valid, your family will need more legal paperwork after you die. They may need an application for an order to validate the will. (They cannot ignore your will even though it is invalid. It will just make things more complicated.)
A different problem can arise if it is missing some legally-required wording although it has been signed and witnessed. It may technically be valid – but only if the High Court receives an affidavit from at least one of your witnesses, or if your family confirm to the High Court that they have done a full search to check there are no other wills. In that situation, you may prefer to sign a new will now.
During the COVID-19 lockdowns, a will could be witnessed by video link rather than by witnesses who were physically present. Additional wording must be included, to show this is what happened. You may like to have this checked, if you did it that way.
If your permanent home is now New Zealand, your overseas will may automatically be valid if it meets the requirements of New Zealand law.
For peace of mind, use Kiwilaw to check this – without delay – for only $39 (including GST).
Legal ownership of house
Do you own your own home?
If it’s co-owned, is it a ‘joint tenancy’ or ‘tenants in common’?
In a joint tenancy, ownership passes to the surviving owner and it is not part of your will. Instead, the surviving owner will need a ‘transmission by survivorship’.
If this is not what you want, you can change it, by changing the legal title now.
Another complication arises if you co-own the house with someone who has already passed away. In that case, you should tidy up the legal title without delay. It only makes things more complicated if left until you too have passed away.
Use Kiwilaw to check your will is consistent with the legal title, for only $39.00 (incl GST and the title search).
ACT NOW! Use this form. Upload a copy of your will (all pages). Pay by credit card (processed securely through Stripe). We will get back to you within 24 hours.
Myths about wills
MYTH: “You need a lawyer (or the Public Trust) to make a will.”
REALITY: Many people can make their own will without using a lawyer or the Public Trust.
MYTH: “You need a lawyer or a JP to witness your will.”
REALITY: Your will can be witnessed by any 2 adults. (Lawyers like to witness the wills they have prepared, so they can check they are signed and witnessed correctly.)
MYTH: “A will has to be registered before it is effective.”
REALITY: A will does not have to be registered anywhere. However, if you leave more than $15,000, or land (other than Maori land), your executor will need to apply to the High Court for probate of the will, after your death.
MYTH: “If a will hasn’t been signed or witnessed properly, it is meaningless and can be ignored.”
REALITY: An invalid will must still be disclosed in an application for letters of administration or an application for probate of an earlier will. In some circumstances it can be declared valid by the High Court.
MYTH: “If a will doesn’t appoint an executor, it is invalid.”
REALITY: A will without an executor is still valid.
It means the main beneficiary will apply for ‘letters of administration with will annexed’ (instead of probate).
MYTH: “A will has to use the right legal jargon, to be valid.”
REALITY: A will does not have to use legal jargon. It simply has to say what will happen to what you own when you die. Plain English is usually better than legal jargon.
MYTH: “A will becomes invalid if the will-maker later gets divorced.”
REALITY: Divorce (or dissolution) does not make a will invalid. It means any gifts to the ex-spouse are automatically cancelled unless the will makes it clear this is not to happen.
MYTH: “In your will, you have to leave your property to your spouse/partner (if any) and children (if any).”
REALITY: Your spouse/partner (if any) and children (if any) can make a claim if you leave them nothing – or not very much – in your will.
That claim will not necessarily succeed. It depends on the specific facts, and on your reasons.
MYTH: “You can’t make a New Zealand will if you aren’t living permanently in New Zealand.”
REALITY: Anyone over 18 can make a New Zealand will.
If you die suddenly while working in New Zealand, having a will can save your family $$$$$ in extra legal fees. Otherwise they may need expensive evidence about the law of your homeland.
MYTH: “You can’t make simple changes to your existing will – you need a new will or at least a codicil.”
REALITY: You can make changes to your existing will if the changes are clearly signed and witnessed according to the requirements for signing and witnessing a new will.
Frequently asked questions.
My two adult children witnessed my will. Is that valid?
The will itself is still valid (if other requirements are met).
However, a witness cannot also benefit under the will. Any gift to them will lapse.
I suggest you sign a new will, with independent adult witnesses who are not mentioned in the will.
My will is not in hard copy. It is on a computer. Is that valid?
It depends.
Under New Zealand law, to be valid, a will must be in writing and cannot be signed electronically.
If the original will was in hard copy and was signed physically, but was then destroyed after being scanned, the High Court can grant probate of a copy of a destroyed will. Your executors will have to explain to the court what happened.
It will be simpler for everyone if you sign a new will, on paper. Make a scanned copy if you like, but keep the original hard copy safe.
My will is handwritten in a notebook. Is that valid?
Yes, if the other requirements have been met.
However, if you own more than $15,000 when you die, or if you own land (other than Maori land), probate will be needed. Your executor/s will have to send your will to the High Court. It will not be returned.
The pages need to stay in the notebook. The whole notebook will have to be sent to the High Court.
It will be simpler for everyone if you sign another will on one or more separate sheets of paper, not in a notebook.
My will has a corrected date on it. Is that valid?
Yes, if the other requirements have been met.
However, if you own more than $15,000 when you die, or have a house or land (other than Maori land), your executors will have to apply for probate. The High Court will want them to confirm that the date change was made at the time the will was signed. The court may want evidence from the witnesses as to the correct date of the will.
It will probably be easier for everyone if you sign a new will.
