Making a will wise action to take
A will is a document that records a person’s wishes as to how the person wants their property to be dealt with upon the person’s death.
It is not a legal requirement to have a will. People make wills as it allows the person (will maker) to direct how all that they own and/or control (their estate) is divided and who will benefit from the estate, upon the death of the will maker. Wills only take effect upon the death of the will maker.
In order for the will maker’s wishes to be carried out, usually the will maker will appoint someone as executer of the will. It is the job of the executer to distribute the estate of the will maker, according to the provisions of the will. For this reason it is a good idea to ensure the executor is independent and can act impartially between the beneficiaries. Executors can be professional people such as lawyers. If a lawyer acts as an executor they can charge for their services and as such will require a provision in the will makers will allowing for this. There can be more than one executor. An executor can be a beneficiary of the will.
Beneficiaries are people or organisations who benefit from the provisions of the will. Importantly a beneficiary cannot witness the will maker’s signature when making the will. If a beneficiary under the will witnesses the will maker’s signature at the time the will is made, the beneficiary may not be able to take their “gift”.
The making of wills is governed by the Wills Act 2007. A person who makes a will must be of sound mind. A will can contain provisions relating to the appointment of executors, revocation of all previous wills, directions for funeral arrangements (but this may not be binding on the executor), directions for donations of body parts, and who will inherit property and possessions. If all previous wills are not revoked in the current or most recently made will, this will affect the validity of the most recently made will.
A will must be in writing, signed at the end by the will maker and two witnesses, with all three being present together, and with all three seeing each other sign the will. It must be the intention of the will maker that the will be intended to take effect as a will and completed when the will maker has legal capacity.
Witnesses to wills do not have to be personally known to the will maker and should not be beneficiaries under the will.
It is possible to make a will using a do it yourself kit, however this may leave the will open to being challenged which may in turn mean the will makers wishes cannot be followed through as the will maker intended. A legal challenge is likely to cost thousands of dollars and take months or years to resolve. In addition such a challenge may upset family relationships and reduce the size of the will makers estate.
Community Law Marlborough is a free drop in service funded by the Ministry of Justice and is able to assist if you have any questions regarding the making of wills. If you wish to see a case worker you can drop in to 14 Market Street or alternatively telephone us on (03) 577 9919, or 0800 266 529, to make an appointment.