I don’t really need a Will, do I?

By Debra Barron, Principal of ClearStone Legal

If you’ve ever wondered if you need a Will, then the real question you should ask yourself is do you want to have a say about how your Estate is distributed?  For example, do you want to leave your property, money, Kiwisaver or your vintage vinyl collection to a friend or loved one?  Who do you want to take charge of carrying out your wishes?  If you have young children (or beloved pets), who will look after them?

If you don’t have a Will, then distribution of your estate will occur according to the Administration Act 1969.  The first $155,000 of your Estate will be given to your partner.  What’s remaining will then be divided into three, with 33% going to your partner and 66% going to your children.  If you don’t have any children, 66% will go to your partner and 33% will go to your parents.

If you have a Will in place, then (if required) Probate at the High Court will be applied for.  The alternative is to apply for Letters of Administration which requires more steps (and of course costs) and can also result in delays and distress for family members.

Who can bring a claim against my Estate?

The Family Protection Act 1955 has built-in protection for members of your family, which means that if you wish to exclude a child (or partner) they may have a claim against your Estate for being excluded or not receiving an equal share as their siblings.  It’s a tricky area - as while you may wish to divide your Estate in a particular way, the law says otherwise.  Sometimes this is accepted by the beneficiaries in your Will, but other times it can lead to delays and disputes between the parties.

Another type of claim is a Testamentary Promise.  This is when the Will maker has made a promise to provide something to someone in their Will.  If it was not provided, that person could bring a claim for a Testamentary Promise.  For example, a neighbour may look after your classic car (clean and maintain it) and even take you out for a drive in it, as you can longer drive yourself anymore.  As a thank you, you may have verbally promised the neighbour that you will leave them your classic car, but you don’t update your Will to provide this.  Your neighbour may have a claim for a Testamentary Promise.  In this case, the gift is proportionate to the service given by your neighbour.

If a claim is brought against an Estate, then the parties could agree to what’s called a Deed of Family Arrangement to settle matters between themselves.  However, if the parties can’t agree then the other option is to file a claim in Court which will mean instructing a Barrister and engaging in litigation, which is very costly and time consuming.

Putting a straightforward Will in place or updating your Will is not as costly as you might think and it could spare your loved ones a lot of time, cost and distress down the track.  If you’d like to discuss this further, feel free to give us a call on 09 972 5102 or email your enquiry to us at admin@cslegal.co.nz.