Keep it simple, if you can - and change it later if you must
...Making a valid will with Kiwilaw's help can be quick, easy, and inexpensive, if you plan it first. Use this page to help you plan.
You will need this information...
Disposal of your remains
Burial or cremation? Where?
Organ donation?
Donating your body to science? (only valid if you have already arranged this with the institution before you die)
Gravestone?
Executor/s - who will do what your will says
Appoint 1 or 2 executors whom you trust.
It’s a good idea to appoint 1 or 2 backup executors (substitutes in case the first executor/s die before you, or refuse to act, or cannot act for some other reason).
They can do the work themselves, or instruct a solicitor, accountant, or trustee company (such as Public Trust) to do some or all of it for them.
They are usually people who will inherit under the will, but this is not compulsory.
They can find out online what to do, when the time comes, and then ask for professional advice if necessary.
They are usually friends or family members who are not paid for their time.
If you appoint a professional person as your executor (solicitor, accountant, trustee company), they will charge fees for their time.
Children under 18? Testamentary guardian?
Do you want to appoint a ‘testamentary guardian’ – someone who will share the ‘big decisions’ about your children, with their other guardian/s?
Do you want this appointment to occur only if their other guardian dies, or do you want it to occur anyway?
What do you own, and who should inherit it?
You can give everything to one person – such as your spouse.
You can give everything to be divided equally among a group of people – such as your children, or your parents.
Or you can do it differently.
You also need to decide who gets it if your first choice does not survive you.
If you give it to your children, and if one of them dies before you, do you want their share to go to their children, or do you want it to go to your other children who survive you?
Do you want to give specific items to different people?
Do you want to give something to a charity? Find one here.
If you name your children in your will, any other children are excluded – be careful to update your will if you have more children
If you do not name your children in your will, illegitimate children are automatically included, while whangai and step-children are excluded
For Maori land – there are special rules – and dividing all the shares among all your children may not be the best idea – consider creating a whanau trust under Te Ture Whenua Maori Act 1993 (now, while you are still alive! – or else in your will)
See also FAQs below
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.
I want to leave everything to my mistress rather than to my wife. Can I do this?
Yes.
However, your wife can choose whether to take her entitlement under inheritance (your will, if you make one) or under relationship property. She can bring a relationship-property claim against your estate.
Alternatively, instead of relationship property, she could potentially claim under the Family Protection Act, if you have breached your ‘moral duty’ to her.
In the end, it’s your will and your decision.
What about my pets?
You can give your pets to someone in your will.
You cannot give your assets to your pets.
However, you can give something to someone who is going to look after your pets.
Choose someone you trust.
Do not leave them an annual allowance on condition that the pet is still alive – there have been overseas cases where pets have seemingly lived forever. (It is easy to find another black spaniel, or tabby cat, to replace one that is ailing.)
Do not give someone the right to inherit your wealth after your pet has died, especially if they are also to care for the pet. There was an overseas case where such a caregiver immediately had the pet euthanised.
Do I have to treat all my children equally in my will?
No.
You can give more to some than to others. You can leave someone out completely, if you want to.
If you do not give any recognition to one of your children, or if you give them less than an adequate share, they can bring a claim against your estate. That claim may or may not succeed, depending on the facts.
It’s usually a good idea to provide an explanation, either in your will or in a separate document that is kept safely with your will.
In the end, it’s your will and your decision.
I own shares in Maori freehold land. In my will, can I leave them to my spouse, civil union partner, or de facto partner?
Only if your spouse/partner is (a) a member of the hapu associated with the land, AND EITHER (b) related to you by blood, OR (c) already an owner of the same land.
Otherwise you can give them a life interest, or an interest for a shorter period, but not an absolute ownership.
(Te Ture Whenua Maori Act 1993 section 108)
My spouse and I own our house jointly. Can I leave my share to our children?
If the house is owed as a ‘joint tenancy’, it goes to the surviving owner and is not covered by your will. If you want to leave your share to anyone other than the co-owner, you need to change it to ‘tenants in common’. A solicitor can help with that. Kiwilaw does not offer that service at present.
How do I know whether our house is a 'joint tenancy' or 'tenancy in common'?
If the title names the owners with no additional wording, it is a ‘joint tenancy’. If one owner dies, their share goes to the other owner/s. (A transmission by survivorship is registered with Land Information New Zealand.) It is not part of your will.
If it says the owners have specific shares each, it is a ‘tenancy in common’. Your share is part of your estate and needs to be covered by your will.
Kiwilaw can check this for you, for $28.75 (incl GST and title search). Click here.
I don't live in New Zealand but I have investments there. Can I make a New Zealand will?
Yes. You can make a will that deals only with your New Zealand assets, or you can make a will that deals with all your assets.
If you are physically in New Zealand when you sign the will, New Zealand law will apply to the will even if you are not in New Zealand when you die, and even if New Zealand is not your home country. The exception is if the will specifies that the law of a different country will apply.
If you are outside New Zealand when you sign the will, and if New Zealand is not your permanent home, the law of your home country will apply unless you specify in your will that ‘New Zealand law is to apply to this will.’
