What is a living will?

A living will is a document that sets out your instructions for medical care and treatment in the event that you are unable to communicate your wishes. It is very common for somebody with a terminal illness to create a living will in advance.

If you would like further advice on this matter, please make an appointment with Scott Donaldson or Malcolm McKenzie.

I don’t get on with one of my children, will he have a claim on my estate when I die?

A child left out of the will could potentially succeed in a claim for maintenance and support under the Family Protection Act.

These claims are all considered separately on their own facts, but the main question is whether or not the deceased had a moral duty to leave something in his/her will to the claimant. The answer to this question is usually determined with reference to factors such as any other competing moral claims, the financial position of the claimant etc.

The view that is most commonly taken by the courts in New Zealand is that parents always have a moral duty to leave something to their biological children in their estate. Bearing this in mind, it is very likely that your child will have a successful Family Protection Act claim on your estate if you decide not to include him/her in your will.

If you would like further advice regarding potential claims on your estate, please make an appointment with Scott Donaldson or Malcolm McKenzie.

When is a will valid?

There are various requirements needed in order for a will to be valid. Section 11 of the Wills Act lists these requirements:

  • The will must be in writing
  • It must be signed by the will-maker or by someone with direct authorisation from the will-maker
  • It must be signed in the presence of at least two witnesses

If the will fails to comply with these requirements, the High Court has the ability to validate it if they believe that it expresses the testamentary intentions of the deceased.

If you would like further advice regarding matters related to wills, please make an appointment with Malcolm McKenzie or Scott Donaldson.

I just got married, is my old will still valid?

The general rule is that an old will is automatically revoked upon the marriage (or civil union) of the will-maker. Due to this, in most cases your will is invalid upon entering into a new marriage.

However, there are some exceptions. For instance, when the will has been made in contemplation of the marriage/civil union, it may remain valid. There are further exceptions regarding powers of appointment in relation to wills.

For further information on any potential exceptions, please make an appointment with Malcolm McKenzie or Scott Donaldson.