Dying intestate - or without a legal will - can lead to your intentions not being met. Photo / 123RF
Dying intestate - or without a legal will - can lead to your intentions not being met. Photo / 123RF
Dying without a will can be messy and have consequences for loved ones.
Research this month from Public Trust ahead of its Wills Week (17 to 23 July) found 65 per cent of parents and guardians with children aged under 5 in New Zealand do not have a will.
Thesurvey of just over 1000 people highlighted a common misconception that people believe they don’t have assets worth protecting, or that they’re too young to need a will.
“Lots of people don’t have a will,” Jeremy Sutton, barrister and family lawyer at Bastion Chambers, tells the Herald. “People particularly who are younger, maybe don’t have children, they don’t have wills into their 30s and 40s, so it’s a major issue.”
Sutton said the importance of a will was to give effect to your intentions.
This can include appointing a testamentary guardian for a child (if both parents were to die), who you leave your estate to, sentimental gifts, and if you wish to be buried or cremated.
“One of the main issues is what we call intestate – you die without a will,” Sutton says.
“If you pass away without a will then the rules within the law apply. Normally a large portion of your estate would automatically go to your partner and then the remainder would be divided between your children.
“If you die without a will you’re really saying: ‘I’ll let the law determine how my estate is going to be distributed and not my own intentions’.”
Even if people don’t necessarily realise it, Sutton says nearly everyone has some money, notably in KiwiSaver.
“We’re not just talking about what’s in your bank account. I see in my divorce practice people with very large KiwiSaver accounts ... and they don’t actually know it because most people aren’t looking every week at their KiwiSaver account seeing how it’s accumulating.”
Barrister and family lawyer Jeremy Sutton.
Dying without a will can also lead to an increase in costs and time to sort out.
“Things can take a bit longer and be a bit more expensive because people are not sure when you die without a will, so there have to be inquiries made, usually advertisements in the newspaper or in a law magazine and there’s no central registry of wills in New Zealand, so it takes a few months to sort that out.
“And just from a convenience point of view for the rest of the family, it would be much better if they had a will. It’s kind of messy.”
It’s always a good idea to tell people you have a will, store it in a safe place and keep a copy of it.
Vanessa Dudley, Public Trust general manager, retail, says wills are important life documents that form a key part of planning for the future.
“All Kiwis over the age of 18 who have assets in one institution worth more than $15,000 or who have dependents should have a will,” she says.
“If you die without a will, it can make things quite complicated and stressful for your family and friends.”
Public Trust’s research also found a high interest in, and value placed on, “emotional” legacy. Seventy-one per cent of those surveyed claim an emotional benefit from receiving a legacy, higher than those who received a financial benefit (51 per cent).
“Getting documents such as a will in place offer a level of comfort for the future as it enables people to fulfil their desire to provide both financial and emotional legacies for their whānau.”
Sutton says a will should be revisited when people have significant changes in life or their relationships because that can have legal consequences.
“It could be when you have a child, when you get married, when you get separated. All those significant events in your life.
“When someone comes in [to my practice] and they are separating it’s one of the first things I say: ‘Have you changed your will?’
“Your will needs to be changed to reflect the fact that you’ve separated, otherwise your position will be that your will will continue to have its original effect until you have what’s called a dissolution order or a separation order.
“Most people don’t know that. They think as soon as they’ve separated things change within their will, but they don’t.”
Sutton advises that, when making a will considering family members, people should include everyone.
“If you have a situation of, say, two siblings and you decide to only include one sibling out of two then it’s going to be easier for that person who is excluded to bring some sort of action before the court.
“If you provide for someone slightly less than someone else and you give reasons it’s more likely to be upheld than if you exclude someone altogether in your will.”
And if an elderly person is making a will, a medical certificate from a doctor to say that that person is competent and able to make that will could save later trouble down the road.
“It’s a relatively easy thing to do but it does take thought and consideration,” Sutton says.
“It’s not generally something that you go into an office and finalise the first time because you need to talk to people and think about it.”
– Cameron Smith is an Auckland-based journalist with the Herald business team. He joined the Herald in 2015 and has covered business and sport.
