While contemplating one’s mortality isn’t the most uplifting of pastimes, it is important to consider how you would like your earthly possessions dealt with once you “pop your clogs”.
The shortest Will recorded was simply "Vše ženě", (Czech, "Everything to wife"), written on a wall. A close second for brevity was “All to Mother” (which, strangely, actually referred to the Will-maker’s wife).
The longest Will ever probated was that of Frederica Evelyn Stilwell Cook in 1925. It clocked in at 1066 pages (95,940 words) and occupied four gilt-edged, leather-bound volumes.
Your Will should probably sit somewhere sensibly in the middle of those extremes.
Who will execute your wishes?
The first thing you need to decide is who you want to carry out your wishes and distribute your Estate (everything you own after you die). This person/these people are your “executor/s”. People who are married, or in de facto relationships, often choose their spouse as their sole executor and beneficiary, with “back-up” executors, should their spouse die before them, or if they pass together or within a short time of each other. It’s a reality many people don’t even think about – or want to – but spouses and partners tend to live, travel and socialise together, so dying together is a tragic, albeit possible, scenario that should always be considered.
Older parents might choose their children, if they are over 18 and responsible. Single folk often opt for a close friend or two, while others like to use a professional who knows them, such as an accountant or lawyer.
Nominating more than one executor means you have a back-up if an executor dies or cannot act (they may have lost capacity, or be in deepest, darkest Peru and unreachable). More than three executors starts to get a bit complicated, as each executor has to sign off on everything “official”, which is time-consuming if they live far away.
Who will benefit?
“Beneficiaries” are the people, charities or trusts that inherit your assets. Note, though, your executors are still able to be beneficiaries of your Will, and usually are the primary beneficiaries.
Animals cannot be direct beneficiaries, but you can ask for money to be set aside to take care of them. American real estate magnate Leona Helmsley left her pooch (aptly named “Trouble”) $12m upon her death. This inevitably caused trouble with her two disinherited grandchildren, and Trouble had to be put into protective custody to avoid the death threats levelled at him in the wake of the controversy.
Who will take care of the kids?
Testamentary guardians are a vital consideration when making your will, if you have dependent children. If the other parent of the children survives you, they will automatically become the caregiver (unless you specify otherwise). However, if both parents of any young children are deceased, the nominated testamentary guardians will be the people charged with taking care of the little ones.
What will happen to my earthly remains?
While you can include funerary wishes in your Will, we recommend advising your Executors, as soon as you have your Will drawn up, how you would like your earthly remains to be dealt with, as funerals are often arranged prior to the Will being considered.
Your wishes will need to be in writing
While leaving a video recording of yourself reprimanding all those who wronged you in life and cutting them off from any inheritance might strike you as cathartic, it would likely not be valid. While there has been some loosening since the Wills Act 2007, the expectation is Wills in New Zealand be in writing, with two witnesses present at its signing … unless you’re a sailor or at war – but that’s another story.
Although Wills in the past have been written on: a tractor fender ("In case I die in this mess I leave all to the wife. Cecil Geo. Harris."); an ostrich egg (“17-1925. Mag. Everything I possess”); and, in our earlier case ("Vše ženě"), on a wall, plain paper is the preferred medium.
With the advances in technology and an increasingly digital society, other forms may someday become more common – but we’re not there yet.
How will I add to my Will?
In the time before computers were widely used, Wills were typed on typewriters or written by hand (handwritten Wills are called “holographs”, which is not anywhere near as “Star Wars” as it sounds).
This made adding to your Will or changing it a bit of a chore. So, something called a “codicil” was added on. It served to amend, explain, add or remove parts of the Will.
Nowadays in New Zealand, we just amend your most recent Will on a computer, and you sign it as a new Will … much less complicated and more cost-effective.
What will happen if I have no Will?
Your estate will be dealt with under the Administration Act 1969. It gets quite complicated, depending on your family structure – see this.
Will I make my own from a DIY template?
While it is possible to make your own Will, it is quite likely your Executors will need assistance from a lawyer in obtaining Probate and administering your Will after you pass – and this is where the problems often arise.
If a Will is not “valid” – that is, it doesn’t meet the requirements set out in the Wills Act 2007 – then Probate will not be easily obtained.
While a small amount of money may have been saved by bypassing legal support, the process that needs to be followed in order to deal with bank accounts, real estate, insurance policies and the like can be costly and can easily diminish your assets. It actually takes a lot of work to get a home-made or “make-your-own-Will” document formally recognised.
I once acted for the family of a woman who had opted to make her own Will, and used an internet template. She then decided to add a large decorative border around it, using all the space the paper had, and then printed it double sided. The relevance? There was no room left on the DIY Will document for the formalities that must be included once the Will-maker dies – like requisite signatures and stamps. To complicate matters further, she had used peoples’ nicknames instead of legal names, it wasn’t witnessed properly, and she had stapled something to it, and then removed it at some point.
By the time we were able to deal with the Estate, what would have been a bill of a few hundred dollars if she had used a lawyer to make the Will was now several thousand dollars. It also caused significant stress to the family, who were left with the extra costs, and weren’t able to deal with the Estate for over a year.
How often will I update my Will?
There is no hard and fast rule, but we suggest every five years is a good time to review your Will, and assess if anything needs to be updated as your circumstances change. Getting married, buying your first property, having children and separating are all events that are likely to spark a Will update.
Please feel free to get in touch if you would like to make a Will, or think yours needs updating. We’re doing a Wills review for clients at the moment, so you might hear from us soon.
For some entertaining Will-related reading, this listicle has some of the best examples of strange bequests.