Wills Act 2007

By Sarah Arnold, Solicitor

First published in Rural News, 18 March 2008

The old laws had been with us since New Zealand was colonised. Over the decades various changes had been made.

For instance, following the Second World War, soldiers and sailors were given special powers. A soldier at war could make a Will simply by telling another person what they wanted. Since 1969, married 16 and 17-year-olds have been allowed to make Wills. From 2005, civil unions were introduced.

Despite these changes, the same basic laws have applied to Wills for over 100 years. For example:

If you simply write something down and sign it, it is not a valid Will
For a valid Will you need two witnesses
Both witnesses must be in the room with you when you sign your Will
You must sign the Will at the very foot or end
Witnesses cannot receive gifts from your Will
Witnesses’ spouses cannot receive gifts from your Will
You cannot cross anything out or add anything in once you have signed your Will
Marriage will revoke a Will unless the Will is made “in contemplation of marriage”.

Under the new legislation, changes to making a Will include:

If you are under 18 and in a de facto relationship you can now make a Will
If you are under 18 preparing to be married or enter into a civil union you can make a Will (before this, you had to wait until after the ceremony)
You can now have two or more witnesses
You can now sign anywhere on the Will (not just at the foot)
Witnesses can now receive gifts from your Will, but only –

If there are two other witnesses who do not receive gifts; or
If all the people who are going to or who could benefit from your Will agree in writing

Previously, if you got a divorce this cancelled all the gifts to your ex-spouse in your Will, now a separation order also does this.

There are also changes to “mutual Wills”. A mutual Will is a Will made on the basis of an understanding, agreement or promise with another person (usually a spouse) as to what will happen in the future. For example, a statement in a wife’s Will such as “I have made no provision for John because, by arrangement with my husband, my husband has given John our dairy herd under his Will” or “I have agreed to leave my horse to Mary on the basis my husband leaves his sheep dogs to Peter”.

If the survivor (for example, the husband above) changes their will, then a person that would have benefited under the agreement or promise (like John or Peter above) will now be able to make a claim against the survivor’s Will for the amount he or she would have received if the survivor hadn’t changed their Will.

The changes to the Wills Act modernise the law, but retain many of the basic principles. Despite the changes, great care must be taken when drafting and signing Wills. You can’t change your Will after you’ve died.

Location http://www.duncancotterill.com/index.cfm/1,159,441,0,html