Wills: overview

This chapter covers:

  • key terms, and the key people involved in dealing with a will and the deceased person’s property, including executors, administrators, and trustees
  • how to make a will
  • how to change your will
  • the different ways your will might be challenged or not followed from after you die – for example, a challenge from family members under the Family Protection Act, or a court order under the relationship-property laws.

For information about what happens when someone dies without leaving a will, see the chapter “A death in the family”, under “Dealing with the deceased’s property”.

For information about making an “advance directive” about medical treatment (sometimes called a “living will”), see the chapter “Health and disability”, under “The Code of Health and Disability Services Consumers’ Rights” (Right 7).

What is a will?

A will is the document that states a person’s wishes and disposes of a person’s property on his or her death. It does not take effect until the person dies.

Does a person have to have a will?

No. But it is a good idea for a person to have a will as it is the way a person can direct what they want to happen to their property and (to a limited extent) how they want any of their dependants cared for when they die.

Although a person does not have to have a will, if they die without a will their property will be distributed according to laws of intestacy in the Administration Act 1969 (see the chapter “A death in the family”, under “Dealing with the deceased’s property”). This may not be the way the person would have wanted things done.

Key terms and definitions

Administrator See below, “Who’s who: Executors and other key people”.

Assets – The property (including land, houses, chattels) a person 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. The codicil doesn’t cancel the original will, it changes or adds to it.

Grant of administration – a general term that covers both when the court grants probate (for a will) and when it appoints someone to manage the estate by granting “letters of administration” (when there’s no will)

Estate – Everything that a deceased person owns or controls.

Executor See below, “Who’s who: Executors and other key people”.

Intestate – To die leaving no will or where any property owned is not effectively disposed of under a will.

The laws of intestacy – Laws that determine how and among whom any intestate property is divided when a person dies intestate.

Legacy – Money left by a will.

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

Personal representative – A general term for the person who does the job of managing the deceased’s estate, which 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). For information about executors and administrators, see below, “Who’s who: Executors and other key people”.

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 – previously known as a “testator” (male) or “testatrix” (female).

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