The Wills Act 2007 (“Act”) governs how wills should be prepared, executed, amended and administered. The Act was introduced to make the law around wills easier to understand, with a single reference point rather than spread over different statutes. An overview of the Act is outlined below.
- The Act applies to the wills of people who die on or after 1 November 2007 regardless of when the will was executed. However, s 40 of the Act provides guidance on which sections of the Act are modified to apply to wills made before November 2007. For example, some provisions of the Act for wills made before 26 April 2005 (the date civil union was made legal in NZ), must be read as if the words ‘civil union’ are not included.
- Section 8 of the Act defines a will as a document that is made by a natural person which disposes of property and/or appoints a testamentary guardian.
- Section 9 of the Act states that anyone 18 years or over may make a will, however, minors below the age of 18 may make a will if they are married, in a civil union, de facto relationship or are a military, seagoing person or with the approval from the Family Court. Section 10 of the Act goes further and allows those under 18 to make a will who have agreed to marry or enter a civil union, which will only be effective if the marriage or civil union occurs. The will does not have effect if the will-maker dies before marrying or entering the civil union.
- Section 11 states, for a will to be valid, it must be in writing, signed by the will-maker (or another at their direction), witnessed by two people together and signed by the witnesses in the will-maker’s presence. Contrary to previous legislation, the Act does not stipulate where the will-maker’s signature must be on the document, however, it is advised to sign at the bottom of the will. Given the Covid-19 lockdowns, the Epidemic Preparedness (Wills Act 2007—Signing and Witnessing of Wills) Immediate Modification Order 2020 is in force which modifies the attestation requirements and allows signing of wills via audio visual link. Section 14 allows the High Court to declare a will as valid notwithstanding compliance with s 11 or if the document was made overseas.
- Section 12 provides that appointed executors may witness the will, however, if they are also a beneficiary, their benefit may be forfeited under s 13 of the Act. Accordingly, it is suggested that witnesses are independent. Witnesses do not need to know that the document they sign is a will.
- Sections 15-17 of the Act provides how will-makers may change, revoke or revive their wills. A will is also revoked if the will-maker subsequently marries or enters into a civil union, unless the will was made in contemplation of marriage. An annulment of a marriage or civil union, or a separation order invalidates provision made in a will to a former spouse/partner; and the will must be read as if the former spouse/partner died immediately before the deceased.
A will only comes into effect once you die and is arguably the most important document you will ever sign. Accordingly, it’s strongly recommended to seek legal advice when creating a will in accordance with the Act.