Where there is a Will, there is a way. At least, that’s the hope when documenting your wishes for after you pass away.

Generally, as long as your instructions are written down, they can be acted upon. However, if your documentation doesn’t comply with the strict requirements for a valid Will, your estate might face significant expenses to validate the Will and obtain court permission to enforce it. Too often, we see ‘fix it’ jobs where Wills haven’t been drafted or signed correctly, or no legal advice was sought, making the deceased’s wishes impossible to follow. Recently, two common, but easily avoidable, mistakes have frequently crossed my desk.

New Marriages

Many people are surprised to learn that getting married invalidates any previous Will unless it was prepared in contemplation of marriage. Without this, any prior Will has no effect, and your property is divided according to the default legal provisions that apply when no Will exists. Consider a parent who leaves everything in their Will to children from a previous relationship. If they marry a new partner thinking their children will still receive all their property, they may be surprised. Their new marriage deems them to have no Will, and under default legal provisions, all their property could go to their new partner—clearly not the intended outcome.

Homemade Wills

The prevalence of ‘Homemade Wills’—those downloaded from the internet, bought from third parties, or even written on scrap paper—is increasing. These Wills often contain errors. Common mistakes include not ensuring the wording (especially the signing portion) meets New Zealand requirements and improper signing of the Will. New Zealand law has strict requirements for how a Will should be signed and the specific phrases that need to be used. Without a lawyer’s guidance, this process is rarely done correctly. We often face the challenge of tracking down witnesses and getting them to recall how the Will was signed to provide evidence to the court.

Another issue with Homemade Wills is the lack of legal advice regarding what is possible and not possible, what distributions of property can be made, and what could cause disputes. For instance, although leaving property in equal shares to all future descendants or instructing that the property not be sold and children receive equal ownership shares might seem fair, it can lead to family disputes and costly court proceedings. A lawyer would advise that such instructions may cause issues down the line. A properly advised and drafted Will can ensure quick, dispute-free distribution of property, allowing your wishes to be followed.

While there are ways to fix mistakes and validate Wills, doing so is much more expensive than the cost of having a lawyer prepare the Will initially.

Review and Update Your Will

If your circumstances have changed, it’s time to review your Will. Contact us to draft a new Will that ensures your wishes are fulfilled and spares your loved ones from costly issues.