Why do I need a will?

Death is the most uncomfortable fact of life. Perhaps this is why less than half of adult New Zealanders have a will. However, there are a number of good reasons to buck this trend by ‘getting your affairs in order’ sooner rather than later.

Many Kiwis don’t appreciate that, when a person dies without a will, their estate is distributed in accordance with the succession rules in the Administration Act 1969. These rules set out a prescriptive guide for ‘who gets what’ depending on which relations the deceased is survived by. For example, if a person dies without a will and is survived by a de facto partner and child, that surviving partner will receive all of the deceased’s personal effects, a prescribed amount of $155,000 from the residue of the deceased’s estate and a further 1/3 of that residue. The surviving child then receives the remaining 2/3 of the residue (if there is any left to distribute!).

The issue with this approach is that it may not reflect what the deceased intended for their property upon death. Taking the above example, there is no guarantee a surviving child would end up with any share of the deceased’s estate. But what if that was not the deceased’s intention? What about if the deceased had not considered that their surviving partner was a ‘de facto partner’ by law and had not wished for them to receive anything from their estate?

These are the sort of challenging issues that families, lawyers, and the courts are commonly faced with. Fortunately, there is a straightforward and cost-effective way to prevent many of the problems that otherwise often arise in estate administration: having an effective will in place.

A well-drafted will ensures there is no confusion as to the will-maker’s intentions. Wills can provide certainty on a number of matters, including specific gifts, gifts to charity, guardianship appointments for dependent children, payment of debts, funeral and cremation/burial instructions, and who will be appointed as executor to ensure all of these wishes are carried out.

A will may also provide key evidence if a claim is made against the will-maker’s estate. Claims are often made pursuant to the Family Protection Act 1955 (FPA), under which there is a ‘moral duty’ to properly provide for certain people out of one’s estate. However, in some cases, the prospect of gifting anything to a child, spouse or grandchild is unthinkable. Consider the example of a child who knowingly misappropriates large sums of their father’s money prior to his death. In these circumstances, if the father has no desire to leave anything to his child, a will which clearly details the reasons for the child’s exclusion from it may be crucial in terms of defeating any claim that child may later make under the FPA.

In a legal sense, preparing a well-drafted will is one of the most cost-effective decisions a person can make for themselves and their family. If you would like to discuss your own asset planning needs, contact Sarah Churstain  or Jordan Todd.