If you’re on a tight budget, it can be tempting to write your own will (rather than having one drawn up by a lawyer).
But writing your own will can be risky, as there are certain requirements that must be strictly followed. If your will doesn’t comply with these requirements, it may be deemed invalid.
In this article, Debbie Nelson walks us through 10 important requirements that must be followed when writing, handling and storing a will.
1. Witnessing requirements
Your will needs to be witnessed correctly, as there are specific witnessing requirements that must be adhered to.
If your will doesn’t meet these requirements, the court may require affidavits by those present at the signing of the will when applying for probate, which can delay the issuing of probate (and therefore, delay the distribution of assets to your beneficiaries).
If your witnesses can’t be located, this could cause further delays and cost to your estate.
Your will also needs to have an appropriate witnessing clause included.
In addition, it’s important to choose the correct witnesses. Your beneficiaries shouldn’t witness the will, as this could invalidate any gifts to those beneficiaries.
2. Dating requirements
Your will needs to be dated.
If it isn’t clearly dated, further documents will need to be submitted to the court when applying for probate.
3. Naming requirements
If the names in your will aren’t spelt correctly, an affidavit will need to be submitted to the High Court when applying for probate.
In particular, each beneficiary should be correctly named so there’s no doubt as to his or her identity.
4. Executor requirements
An executor must be named in your will and, again, his or her name needs to be accurate. If an executor isn’t named, an administrator will be appointed in accordance with the priority order set out in the High Court Rules 2016.
5. Gifting requirements
Care needs to be taken when listing the specific assets and personal items you’d like to gift to beneficiaries.
It’s also important to have a clause that states how the remainder of your estate (aside from these specific items) should be dealt with.
6. Catering to different scenarios
It’s a good idea to ensure your will caters for different scenarios that might eventuate.
For example, your will should state what happens if:
- A beneficiary passes away before or at the same time as you (you can make further provision in your will to cover this, leaving your residuary estate to other family members, friends or charities)
- An executor dies before you or is unable or unwilling to act (you can appoint a substitute executor or executors to allow for this)
- You no longer own an asset mentioned in your will
7. Special circumstances
In certain situations, it’s particularly important to seek expert legal advice that takes your circumstances into consideration.
If you have a blended family, for example, it’s crucial to ensure that everyone in the family is adequately catered for in your will and that the ownership structure of your assets allows the wishes in your will to be carried out.
8. Handling and storage requirements
Your will needs to be kept in a safe place where it won’t be damaged, marked or have other papers attached to it. If your will is damaged in any way, the court will question whether the document has been tampered with.
For example, if a will has been paper-clipped (or there’s a dent caused by a paperclip that was attached previously), this can lead to issues when applying for probate, as the court assumes there’s been something attached to the will that is now missing.
In this instance, further documents would need to be submitted to the court. In addition, the people who witnessed your will may need to give evidence that there were no additional pages or documents attached to the will when it was signed in front of them.
We always store our clients’ wills in a safe and ensure they’re not marked or damaged in any way.
9. Mental capacity
If there’s any uncertainty as to your mental capacity to make and/or sign a will, legal advice and possibly a medical certificate will be required.
If you don’t take these precautions, your will could be challenged after your death.
10. Understanding of obligations
When making a will, you need to be aware of certain legal and moral obligations imposed on you by statute law.
If the court believes you weren’t aware of these obligations when writing your will, this could leave your will open for a claim to be brought against the estate. For example, if a relative or partner believes they haven’t been adequately provided for in your will, they can make a claim under the Family Protection Act 1955.
How we can help
Your will is an extremely important document, so it’s important to make sure it correctly sets out your wishes and is signed, witnessed and dated in line with legal requirements.
Engaging a lawyer to help you create a will isn’t necessarily expensive – particularly if your assets and family structure are straightforward – and it can save your loved ones a lot of time, money and stress in the long run.
If you’d like to speak with us about making a will, please get in touch on enquiries@armstrongmurray.co.nz or 09 489 9102.
This article is brief and general in nature. You should not treat it as legal advice and should seek professional advice before taking any action in relation to the matters dealt with in this post. Armstrong Murray accepts no liability for losses suffered by any person or organisation who may rely directly or indirectly on this post.
