Where there is a Will, there is a way. At least, that is what we would like to think when documenting what we want to happen to us after we die.
Generally speaking, yes, as long as your instructions are written down in some form or another, they can be given affect to. However, if your documentation does not comply with the strict requirements for a valid Will, your estate may be faced with significant expenses to validate the Will and obtain the court’s permission to enforce that document. Too often I am doing ‘fix it’ jobs where Wills have not been drafted or signed correctly, or no legal advice has been obtained and the wishes of the deceased are simply impossible to follow. Recently, the files coming across my desk are a result of two common, but easily avoidable, mistakes.
New Marriages. Many people are surprised to learn that if you get married, any Will that you previously had is invalid. The only exception is where you have prepared a Will in contemplation of marriage. Otherwise, any Will you have, has no effect, and your property is simply divided in accordance with the default provisions in the law which apply when no Will has been left. Consider the case where a parent leaves everything in their Will to their children from a previous relationship. Then, they marry a new partner thinking that their children will still receive all their property. However, as they have subsequently married, they are deemed to have no Will and all their property could then be distributed to their new partner under the default legal provisions – clearly not what the parent wanted to happen.
Homemade Wills. Increasingly we are seeing a variety of ‘Homemade Wills’. These are Wills which have been downloaded from the internet, purchased from a 3rd party, or perhaps written on scrap paper. There are a multitude of mistakes which can be made with these Wills. In our experience, the most common are not ensuring the wording (particularly the signing portion) meets New Zealand requirements and that the Will has been signed correctly. New Zealand law sets out strict requirements as to how a Will should be signed and the specific phrases that need to be used. Understandably, without a lawyer to guide this process, it is rarely done correctly. The difficulty for us, is then having to track down witnesses and get them to try and recall the details of how the Will was signed, so that this evidence can be provided to the court.
The other difficulty with Homemade Wills is that legal advice is not obtained as to what is possible and not possible, what distributions of property can be made, and what other distributions could cause issues and family disputes. Although it is tempting to leave your property in equal shares to all your future descendants, or to instruct that the property should not be sold and your children should all receive an equal ownership share, a lawyer would be able to advise you that, practically, this is likely to only cause issues for your family down the track, and expensive court proceedings, when everyone doesn’t agree. A properly advised client and drafted Will can ensure that property is quickly distributed without fuss or dispute, and your wishes can be followed.
In saying this, there are ways of fixing mistakes and validating Wills which we can attend to for families where there are issues with their loved one’s Will. However, the costs of doing so are much greater than the cost their loved one would have incurred in instructing us to prepare the Will in the first place.