EstatesLegal TermsWills

Glossary of Legal Terms Everyone Needs to Know

Some key legal words and what they mean

Administrator

Person appointed by the courts to look after your estate should you die without a will.

 Assets

 The property (including money, land, houses and chattels) that someone owns.

 Bequest      

 Property (other than money) disposed of under a will.

 Codicil

An additional or supplementary will made after the original will has been signed. codicil doesn’t cancel the original will. It changes that will or adds to it.

 Grant Of Administration

 A general term that covers: when the court grants probate for a will, and when the court appoints someone to manage the estate by granting “letters of administration” (when there’s no will).

 Estate

 Everything that a person owns or controls at the time of their death.

 Executor

Person or company appointed in a will to control and distribute the will-maker’s property according to the instructions in the will See below

 Intestate 

Describes the estate of someone who dies leaving no will or whose property is not effectively disposed of under a will.

Laws Of Intestacy

 – Laws that determine how, and among whom, any property is divided when someone dies intestate.

 Legacy       

Money or other property left by a will.

 Letters Of Administration

A High Court order (also known as an “order to administer”) that vests intestate property in an administrator and gives that administrator power to manage an intestate estate.

 Personal Representative

A general term for the person who manages the deceased person’s estate, who will either be the “executor” (the person appointed to do this under a will) or the “administrator” (the person appointed by the courts to do this under “letters of administration” if there’s no will).

 Probate

A High Court order that establishes that a will is valid and gives the executor authority to deal with the estate.

 Will-maker

 A person who makes, changes, revokes or revives a will – such a person used to be called a “testator” (male) or “testatrix” (female).

 If you wanting to have a will prepared for you, this information is useful so you understand what decision you need to make before you see the lawyer.

 Who will be your Executor and Trustee/s of your Will? These are people you trust to carry out your wishes in your will.

Who will you leave your estate to when you pass away?

Are there any special bequests you wish to make to charity or your children?

Do you wish to leave specific jewellery, for example, to your children or other people?

If you have children who are under 16 years of age, so you wish to appoint a guardian for your children?

Who is an Executor

Who is an executor?

An executor is the person or company appointed in a will to control and distribute the will-maker’s property according to the instructions in the will. (For information about the executor’s role when the will-maker has died.

An executor can be:

  • any adult over 20 who is of sound mind, or

  • a trustee company under the Trustee Companies Act 1967.

Ideally, when you make a will you should appoint someone with a mix of social and business skills who is able to act impartially between the beneficiaries. It is not recommended that you appoint your spouse, partner or children, as they may not be impartial.

Administration Act 1969, ss 13, 63

Note: if your executor dies before you do, the executor’s executor becomes your executor, unless you changed your will and appointed a new executor or have provided for a replacement executor in your will.

Do I have to get the person’s consent to appoint them as my executor?

It is not legally required to get someone’s permission before appointing them as your executor. However, it is a good idea to ask them, as they may refuse to accept the role after your death.

What does an executor do?

An executor:

  • identifies and gathers in the deceased person’s property, sells it if necessary, pays any debts and distributes what remains to the beneficiaries according to the will

  • ensures (as far as legally possible) that the deceased person’s wishes, as set out in the will, are carried out

  • is responsible for the deceased person’s body and its disposal. The executor can choose the type of funeral and burial, but they will generally follow what was said in the will or the wishes of family or friends.

Note; Any Maori custom must be considered by the executor, but ultimately the executor has the final say on how and where the body is buried.

Can an executor also be a beneficiary?

Yes. An executor can be named in the will as a beneficiary.

Does an executor get paid?

Executors can get paid for their services, but only if this is provided for in the will. Where the executor is a professional (for example, a lawyer, accountant or trust company), they will generally ask for the will to include arrangements for their payment.

Administrators

Who is an “administrator”?

An administrator is the person appointed by the court to manage the estate of someone who dies without a will – this is called dying “intestate”.

 Usually a family member applies to be the administrator. They must give the court evidence that everyone who is equally close to the deceased person has either agreed to or been told about their application. The court will almost always appoint the deceased person’s next of kin as the administrator, unless they do not wish to have the job. If more than one person applies, the court will usually appoint the administrator according to the following order:

Administration Act 1969, s 6High Court Rules 2016 (LI 2016/225), rule 27.35(4)

  • The surviving spouse or de facto partner, then

  • The children of the deceased, then

  • The parents of the deceased, then

  • Brothers and sisters of the deceased, then

  • Grandparents, then

  • Uncles and aunts.

When will the court appoint an administrator?

The court will appoint an administrator if someone dies and there is no will, or if there is a will but no executor. Examples of where there may be a Will but no executor include where:

  • the executor named in the will dies before the will-maker, or

  • the will does not name an executor, or

  • the executor named in the will refuses or is unable to act.

What does an administrator do?

Administration Act 1969, s 41, Family Protection Act 1955, ss 11,11A

An administrator carries out the same functions as an executor (see above, “Executors / What does an executor do?”). When there is no will, the administrator distributes the assets of the estate according to the laws of intestacy.

Where there is a will but no executor, the administrator administers the estate according to the will.

The administrator has a duty to give the court all the relevant information they have about the financial affairs of the estate and the deceased person’s reasons for making the provisions in the will or for not making provisions for any particular person. The court must consider the deceased person’s reasons.

Beneficiaries

Who is a beneficiary?

A beneficiary is any person or organisation who is left anything under a will.

Wills Act 2007, s 13

Note: If a person named as a beneficiary, they should not be a witness to the signing of the will. If they witness the will, they, and their spouse, civil union partner or de facto partner, will usually lose any entitlement under the will (see “Who can be a witness to the making of my will?” in this chapter).

Trustees

Who is a trustee?

Administration Act 1969, ss 13, 63

A trustee is a person or organisation responsible for holding any of the will-maker’s property until it can be paid to the beneficiary who is entitled to the property. The roles of executor and trustee are usually combined.

Do I have to get the person’s consent to appoint them as a trustee?

It is not legally required to get someone’s permission before appointing them as a trustee. However, it is a good idea to ask them, as they may refuse to accept the role after your death.

What does a trustee do?

In a will, the legal ownership of the property passes to the trustee on the death of the will-maker. The trustee must hold it for the beneficiaries and distribute it under the terms of the will. Sometimes the trustee’s role may continue for some time, for example, where the will provides for children to benefit when they reach a certain age.

Does a trustee get paid?

Trustees can get paid for their services only if this is provided for in the will. Where the trustee is a professional (for example, a lawyer, accountant or trust company), they will generally ask for the will to include arrangements for their payment.

MAKING A WILL

Note:The law dealing with making a will is mainly governed by the Wills Act 2007. However, if you made your will before 1 November 2007, some of the earlier law contained in the old Wills Act 1837 (UK) still applies.

Who can make a will?

Wills Act 2007, ss 9, 10

The following people can make a will:

  • A person who is 18 years old or over and of sound mind.

  • A person who is under 18 years and of sound mind, if:

    • they are or have been married, in a civil union or in a de facto relationship, or

    • they have agreed to marry or enter a civil union with another person, where the will is made in contemplation of the marriage or civil union (however, the will only becomes valid once the marriage or civil union takes place), or

    • they satisfy the Family Court that they understand the effect of making a will (or the action they have asked the court to approve), or

    • they are in the New Zealand Armed Forces and are, at the time of making the will, engaged in war or peacekeeping, are at sea, or are a prisoner of war (or are about to comply with an order to train for or join the New Zealand Armed Forces for service), or

    • they are a seafarer at sea or are about to comply with an order to join a ship as a seafarer.

What can I put into my will?

The aim of your will is to express your wishes about what should happen to your body, your estate and your dependants after you die. This means that a will can cover a wide range of issues. The most common things to include in a will are:

  • The revocation of any earlier will

  • The appointment of one or more executors, who will be responsible for administering your estate after you die

  • Directions for funeral arrangements (for example, cremation or burial and whether or not there is to be a particular ceremony or church service). These wishes are not strictly binding on the executor, but it would be unusual for an executor not to follow them.

  • Directions for any donations of body parts to research or for medical use. It is also a good idea for these instructions to be recorded elsewhere, as a will may not be read in time for an organ or tissue donation to take place

  • Who is to inherit property and other possessions

  • The appointment of a testamentary guardian or guardians and directions about the care of any children. A testamentary guardian acts jointly with any other guardian. However, a testamentary guardian does not have the automatic right to provide day-to-day care for a child. They must apply to the court if they want to be involved in the child’s day-to-day care.

  • Note: Although you can also use your will to give consent to being an organ donor, it will usually be too late for your organs to be used by the time your will is finally read. It’s therefore better to record your consent in a separate, witnessed document, and tell your family or friends about it.

 

What requirements must I meet for my will to be valid?

Wills Act 2007, s 11

To be valid, your will must be:

  • in writing, and

  • signed at the end by you and two witnesses, with all three being present together, and with all three seeing each other sign, and

  • intended by you to take effect as a will, and

  • completed when you have legal capacity.

However, if your will doesn’t meet all those requirements, the courts can still declare it to be a valid will: see below.

As a matter of good practice, you as the will-maker and each of the witnesses should also sign the foot of each page preceding the last page. This helps to guard against any suggestion that pages have been inserted in the will after it was signed.

Can the courts approve my Will even if it’s formally invalid?

Wills Act 2007, s 14; Cases: High Court, Napier, CIV-2009-441-369, 31 Aug 2009

Even if your will doesn’t meet all of the formal requirements (for example, if you had only one witness, not two), the High Court has the power to declare that it’s a valid will. The judge can do this if they’re satisfied that the document expresses what you wanted to happen to your property after your death – your “testamentary intentions”. The judge only has to be satisfied on the balance of probabilities that it’s more likely than not.

The judge can take into account other evidence of what your intentions were, including any statements you’d made, whether written or spoken.

Case: [2017] NZHC 931

The courts have used this validating power quite often, particularly in cases when no-one opposes the judge making the declaration. The vast majority of cases have involved wills that weren’t properly witnessed, or wills that were prepared by a lawyer but not signed by the will-maker.

If a few years have passed since you made your will, the judge will need to be satisfied that you didn’t later change your mind. But the long delay won’t, in itself, stop the judge validating the will. For example, if you made a will years ago and never signed it, this might only be because you didn’t realise you had to sign it.

Cases: [2014] NZHC 548 – [2014] NZHC 667 – [2012] NZHC 753

Even a suicide note can be declared a valid will, and so can documents in various electronic forms, like text messages, emails and videos.

Who can be a witness to the making of my will?

Wills Act 2007, ss 12, 13

Anyone over 18 years old can be a witness to the making of your will. The person does not have to be personally known to you.

However, a person who is a beneficiary under the will should not act as a witness. If property is left to a witness or to their spouse, civil union partner or de facto partner, none of these people will be allowed to receive that gift, unless:

  • the will has at least two other witnesses who are not beneficiaries, and who are not the spouse, civil union partner or de facto partner of a beneficiary, or

  • the gift is the repayment of a debt, or

  • the other beneficiaries (having legal capacity) agree, or

  • the High Court is satisfied that the will-maker knew and approved of the gift and made the gift voluntarily.

Do I need a lawyer to make a will?

Although you can make your own will, home-made wills are often open to being challenged or may raise difficulties when probate is sought. It is a good idea to get the help of a lawyer, or a trust company, such as the Public Trust, to prepare a will. This will help to ensure that the will is legally correct and to protect it from being challenged.

How are children provided for in a will?

A will can provide for children by establishing a trust. For example, a will can provide that when a child reaches the age of majority (18 years), or any other age, they are to be paid a certain amount. Until then, the trustee is to invest the money and hold it on the child’s behalf.

A trustee may pay up to 50 percent of the amount towards the child’s living and education costs before the child reaches the age where they are to be paid their entitlement. The will can also specifically say that more than 50 percent can be used for this.

Trustee Act 1956, s 41

A will can also be used to appoint a testamentary guardian. A testamentary guardian is someone named by a parent in their will who becomes a child’s guardian (jointly with any other guardians) on the parent’s death. However, the appointment of a testamentary guardian can be challenged by the surviving parent or guardian.

Who holds my will until I die?

If a lawyer or trust company has been involved in preparing your will, they will usually hold the will. You should be given a copy, which you should keep with your personal records. This copy should clearly indicate who holds the signed will.

You can choose to hold your own original will. If you keep the original, it should be kept in a safe place. There is no national register of executed wills, so it is important to tell a close relative or one or two close friends where you keep it.

How do I make sure my partner is provided for while they’re waiting for my will to be approved?

After you die, your executor will normally have to apply to the High Court to get the will formally approved (this is called “getting probate”). There could also be other delays before the property is finally distributed to the beneficiaries you’ve named in your will. It’s therefore a good idea for you and your partner to plan ahead to make sure your partner will have an income during this time, if they don’t have their own income or have been financially dependent on you.

One way to do this is to have at least one joint bank account together. Any property (including money) that is owned jointly passes, when one joint owner dies, to the surviving joint owner. This means that all the money in the joint account will immediately belong to your partner when you die.

However, if your estate is a small one, it won’t be necessary to go to court for probate. For example, your bank will be able to pay your money out to your executor or relatives, without the need for probate, if the total in your accounts with the bank is less than $15,000.

So if you’ve got more than $15,000 with your bank, you may want to think about opening an account with a second bank and splitting your money between the two banks. This will bring you under the “small estate” rules, and your executor or family will be able to get access to the money quickly, without having to spend money from your estate on going to the High Court for probate.

Overview

Can I change my will?

Wills Act 2007, ss 9, 15-17

Yes. You can revoke (cancel), change or add to your will at any time during your lifetime, as long as you are still of sound mind.

How do I change or cancel (“revoke”) my will?

Wills Act 2007, ss 15-17

The most common way to change your will is by making a supplementary will. This is known as a codicil (see “Some key legal words and what they mean” in this chapter). A codicil must be signed and witnessed in the same way as a will. A codicil can vary or add to a will and is treated legally as part of the will.

You can also change your will by writing the changes on the will or by describing the changes in a note written on the will.

You can also revoke your will, or part of your will, by:

·        making a valid new will (it is best to include, in the new will, a clause stating that any previous will is revoked)

·        writing a document stating your intention to revoke the will in full or in part and having this document witnessed in the same manner as a will

·        getting married or entering a civil union (see below, “Do changes in my relationships affect the validity of my will?”)

·        destroying the will, or part of it, with the intention of revoking it.

When should I review my will?

It is a good idea to review your will regularly. You should also review your will if there are law changes affecting wills or if your circumstances change; for example, if you marry, separate, divorce or enter a civil union or de facto relationship (see below, “Do changes in my relationships affect the validity of my will?”), or if anyone named in your will dies.

Do changes in my relationships affect the validity of my will?

Wills Act 2007, s 18

Your will is automatically cancelled if you marry or enter a civil union, unless the will was made when you were planning the marriage or civil union and this has been specifically stated in the will or can be clearly shown in the circumstances.

If your marriage or civil union comes to an end, your will is only affected if you have a separation order or if your relationship is formally ended by a dissolution order. A separation order or a dissolution order has the effect of revoking any provision made in your will in favour of your former spouse or civil union partner. In addition, if your former spouse or civil union partner is named as trustee or executor under your will, then this appointment is cancelled. The rest of your will remains valid and takes effect as if your former spouse or civil union partner had died immediately before you.

Wills Act 2007, s 19

If you and your partner are separated, but without a separation order or a dissolution order, your will continues to have its original effect unless you change it.

Unlike a marriage or a civil union, entering or ending a de facto relationship does not have any effect on your will, and the will continues to be current until you take steps to change it.

However, the relationship property laws provide for a surviving spouse, civil union partner or de facto partner to choose whether to apply for a division of relationship property under those laws, or to take instead what has been left to them under their deceased spouse or partner’s will or (if there’s no will) under the laws of intestacy.

CHALLENGES TO YOUR WILL AFTER YOU DIE

Overview

There are several ways your will can be challenged and a number of people who can challenge it.

  • Invalid wills

 The legal validity of a will can be challenged if, for example, it wasn’t made and witnessed in the proper way. However, if there’s no dispute about the legal validity of a will, it may still be possible to challenge it in one of the following three ways.

  • Family Protection Act 1955

 A family member can challenge a will under the Act on the grounds that they were not provided for adequately in the will.

  • Testamentary promises

 If you broke a promise to provide for someone in your will, in return for work or services that they provided, that person can apply to the courts under the Law Reform (Testamentary Promises) Act 1949.

  • Relationship property

Your spouse or partner can apply under the Property (Relationships) Act 1976 to receive half of the relationship property if they are not satisfied with what they have been left under your will.

All of these (apart from questioning the validity of a will) apply also if there is no will.

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