Tags: Law

Where there’s a will, there’s a way

The topic of wills has been in the paper recently, and while a will-maker may have had good intentions, their actions can unintentionally backfire and leave the beneficiaries having to deal with the consequences, which can be both emotionally and financially costly.

Will makers who decide to write their own will to save money can often inadvertently complicate matters even if they use a purchased home will kit. As the saying goes, "you don’t know what you don’t know". We have seen the wills of well-intentioned will-makers complicated by the failure to meet the formalities necessary to create a valid will. Or wills that have handwritten changes or extra documents purporting to change the content of a valid will but lacking the necessary requirements to give effect to those changes; or a lack of clarity or certainty around gifts or bequests; or a failure to ensure the entire estate is dealt with in the event of a beneficiary dying or losing capacity; or a level of rigidity that does not allow for changes in circumstances etc. All of these situations raise the question as to what the will-maker’s testamentary intentions were and how or should the executors give effect to them?  
There are also moral considerations regarding spouses or partners and children of the will-maker (whether estranged or not). Just because a will-maker excludes a person from their will, does not mean they don’t have a right to benefit from the estate.  Estrangement, loans to children, debts owed by trusts, powers of appointment, life interests, how assets are owned, contracting out agreements, digital assets and legacies, marriage or civil unions, blended or second families as well as other changes in circumstances are just some of the important considerations when preparing a will. Lives these days are often more complex than they were for previous generations.   
While not all situations are necessarily fatal to the validity of the document intended to be the last valid will, they will cost the estate and ultimately the beneficiaries time and money in order to resolve them.  For probate to be granted (where there are assets of more than $15,000), the will has to be valid. If there is any doubt as to how the last will should read, then the Court needs to make the decision, and this requires evidence to demonstrate the will-maker’s intentions or capacity. If a will cannot be declared valid then an earlier will may be, or intestacy arises and the beneficiaries will receive according to the provisions of the Administration Act, neither of which is likely to be what the will-maker wanted. While saving costs can often be the motivating factor in doing it yourself, it is better to have a lesser cost up front to prepare a well-considered and appropriate will with a lawyer or legal executive before you die or lose capacity, than leaving your estate to expend significant costs to address the deficits of a well-intentioned but off-the-mark  document intended to be your will.  

Schnauer & Co,
1 Shea Terrace, Takapuna
09 486 0177

By: , By Jo-Anne Thomas (Director)

Issue 152 May 2024