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?
You can make a will if you are:
- 18 years old or over and of sound mind (for a definition of “sound mind,” see: “Key words”)
- under 18 years and of sound mind, if:
- you are or have been married, in a civil union or in a de facto relationship, or
- you 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
- you 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
- you are a seafarer at sea or are about to comply with an order to join a ship as a seafarer, or
- you don’t fit into any of the above categories, but the Family Court agrees that you have the ability to make decisions about what should happen after you die (“testamentary capacity”).
Note: The law defines a de facto relationship as a relationship between two people who live together as a couple but who are not married to or in a civil union with each other (see: “De facto relationships”). They must be 16 years old or older (although parental consent is required if either party is 16 or 17 years old).
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 children, or other people who depend on you (your “dependents”) after you die. Your will can include a wide range of instructions to, for example:
- cancel (“revoke”) any earlier will
- appoint one or more executors, who will be responsible for administering your estate after you die (see: “Choosing an executor”)
- give 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 (see: “Burial and cremation”)
- set out who will inherit property and other possessions
- appoint someone to take care of your children (called “testamentary guardians”) and directions about their care (see: “Who will look after my children if I die while they are young?”)
- allow someone to stay in your property for a set period of time after your death (for example, if you’d like the people you live with to be able to continue living in the home you own until after probate. This can get complicated, so you’ll probably need a lawyer to help you phrase it)
- give directions for any donations of body parts to research or for medical use.
Note: Although you can also use your will to give consent to being an organ and/or tissue donor, it will usually be too late for your organs to be used by the time your will is finally read. It’s better to record your consent in a separate, witnessed document, and tell your family or friends about it. For more details, see: “Donating organs: Who decides”.
Is my will valid?
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 bottom of each page (except the final page that will already have your full signatures). This helps to guard against any suggestion that pages have been inserted in the will after it was signed.
Note: During COVID-19 lockdowns, many people were unable to sign and witness their wills in person. To allow people to sign and witness their wills via video messenger or Zoom, the government enacted the Epidemic Preparedness (Wills Act 2007 – Signing and Witnessing of Wills) Immediate Modification Order 2020. This order expired in October 2022, so now you need to be in person to sign your will.
What if my will is invalid?
Wills Act 2007, s 14 Cases: High Court, Napier, CIV-2009-441-369, 13 Aug 2009
Even if your will doesn’t meet all of the formal requirements (for example, if you had only one witness, not two) a judge at the High Court can declare that it’s a valid will. The judge can do this if they’re satisfied that it’s more likely than not that the document expresses your wishes after your death (known as your “testamentary intentions”).
The courts have used this validating power quite often – most commonly if the will wasn’t properly witnessed, or if it was prepared by a lawyer but not yet signed by the will-maker.
The judge will be more likely to validate a technically invalid will if:
- there is other evidence of what your intentions were that lines up with the invalid will. This evidence could be something you’d written down or said to someone, and
- no one is opposing the declaration (in other words, everyone involved agrees that the will should be declared valid).
Cases:  NZHC 931;  NZHC 548;  NZHC 667;  NZHC 753
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.
Even a suicide note could 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 my will?
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. Your witness should not be someone who is included in the will. If they are, there is a risk that they (and their partner) won’t be able to receive any property that you leave for them in the will.
If someone is a witness to the will, they can only receive property left to them if:
- 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, who must all have legal capacity, all agree, or
- the High Court agrees that you knew and approved of the gift and made the gift voluntarily.