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Kiwis are known for our DIY and “number eight wire” mentality. However, when it comes to recording your final wishes, doing it yourself can lead to some unintended, expensive and sometimes heartbreaking complications for the loved ones you leave behind.
While we all know that professional fees can be a hurdle, skimping on a will is one area where a “quick fix” often creates a significant mess.
If your will does not strictly comply with the requirements of the Wills Act 2007, it may be declared invalid. In such cases, your wishes may not be followed, further applications to the court may be required to fix defects in the document, or your estate could fall into intestacy.
Intestacy, or dying without a valid will, means that the law decides how your assets are distributed, not you. Under the Administration Act 1969, your estate would be dealt with according to a set legal formula, which can differ significantly from your actual intentions. A professionally drafted will is a vital tool for preventing disputes over treasured items, the distribution of your assets and your funeral arrangements.
If your estate is valued at over $40,000*, the executors named in your will need to apply to the High Court for probate to deal with your estate. Even with a valid will, the probate process typically takes four to six weeks. However, a will that fails to meet legal requirements can cause significant delays and require further applications to the court. This inevitably results in higher legal fees, increased stress for grieving family members and a higher likelihood of family disputes.
DIY wills or online forms are generally not designed to manage the complexities of modern life or contemplate how your circumstances may change between the time you make your will and your death. DIY wills often struggle to account for shared or relationship property, family trusts, blended families, business interests, or assets held overseas. For today’s diverse families, professional advice is necessary to ensure these complicated assets are handled correctly to avoid confusion.
It is also important to note that courts may give more weight to legal challenges when no professional advice was sought. If a family member challenges your will in the High Court, a judge is more inclined to consider the application seriously if you did not seek legal advice or consider the relevant issues in depth. Conversely, the file notes your lawyer makes when advising you about your will may serve as evidence to the court that helps protect your wishes after you have passed away.
When organising your affairs, it is well worth investing in getting your will right; good advice can ensure your wishes are honoured and that administration of your estate is as simple as possible.
* For most assets. Some classes of assets, such as shares, have a lower threshold of $15,000.
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