People often don't think about writing a will until a major life event takes place. Photo / 123rf
People often don't think about writing a will until a major life event takes place. Photo / 123rf
Around 50-60% of people don’t have a will, lawyer Jeremy Sutton says.
Sutton and journalist Mary Holm stress that every adult should have a will to ensure their intentions are met.
Dying without a will can lead to costly legal processes and unintended distribution of assets.
For around half the population of New Zealand, writing a will isn’t at the top of their to-do list.
As many as 50-60% of Kiwis don’t have a will, according to Auckland-based family and divorce lawyer Jeremy Sutton.
It’s something we procrastinate about doing for all kinds of reasons –maybe it’s the cost, time and effort; maybe deciding who gets your stuff when you die feels like tempting fate, or it could lead to awkward conversations with family members.
But as Sutton explains, it doesn’t matter how many assets you have, whether you own property, if you’re single or in a long-term relationship – if you’re an adult, you should have a will.
Personal finance journalist and NZ Herald columnist Mary Holm agrees.
“In my years of writing my Weekend Herald Q&A column, I’ve come across quite a few people who don’t have wills and should,” Holm says.
“In fact, every adult should really have one. You never know what might happen. And the process of writing a straightforward will is simple.”
Sutton, who specialises in cases that are financially complex or involve family trusts and properties, notes that the process of making a will isn’t well understood.
“It’s not really talked about in school or elsewhere,” he tells the Herald.
“There’s not a programme on TV or Netflix [about] how to write a will. Going to see a lawyer or another profession might be daunting.
Jeremy Sutton is a family and divorce lawyer at Bastion Chambers in Auckland.
“People do procrastinate and put off writing a will, because I suppose it’s quite a hard thing to actually put down their feelings as to who they want to leave any money in their estate to.
“But the reason you have to make a will is that you want to give effect to your intentions, so you want to choose and be flexible as to what goes where.”
In fact, it could cost your family more if you don’t have a will. If you die without a will – “intestate” in legal terms – the law decides how your funds are distributed through an administrator appointed by the High Court, which comes at its own cost.
“It’s highly regulated as to who gets what ... people are going to get less from your estate because there are going to be these administrative costs. It’s going to be much harder to actually give effect to what you might want,” Sutton says.
“There are a lot of places that will do wills for free or very little money, so they may want to take costs once the administration of the estate is done.”
Around half of New Zealanders don't have a will. Photo / 123rf
Maybe it’s not the cost that is the issue – maybe the act of making a will would require you to confront your true feelings about certain family members.
“People don’t tell other people ‘I’ve just made my will and you’re not in my will’. You don’t go out for a drink or a coffee with someone and say, ‘I’m just about to make my will’. In this country, we’re quite private about our affairs.
“In terms of when people do make wills, it’s often when there’s a significant life event.”
Sutton’s advice is not to wait for those big life changes to happen, such as a death in the family or a sudden illness – it’s easier to update an existing will throughout your life.
“In my practice, which is separations, if people separate, then that’s a time when they have to review their wills, because they’re likely not wanting to provide for their ex-partner anymore.
“It might be that the person that is going to administer the estate is unwell or dies, and so that has to be changed. There’s a whole raft of possibilities every 10 to 15 years. It’s quite common for people to change their will five or six times during their lifetime.
“It’s a living document, but it’s a document that changes over time.”
It’s important that your will is written in a way that makes your intentions as clear as possible.
“Traditionally, wills have been written in a legalese that’s hard to understand,” Sutton says.
“Most wills are pretty straightforward. They’re only one or two pages and they’re supposed to be in plain English, so you’re supposed to be able to understand what’s written in the will.”
Whether or not you write it with professional help, it needs to be signed and dated by yourself and two witnesses.
Your will should name at least one executor – someone you trust to make sure your wishes are carried out. That person can be a beneficiary of your will, such as a spouse or close family member; however, the two witnesses cannot.
Finally, at least one person needs to know where to find your will.
“It’s really important that if you make a will, you tell people where it is,” Sutton says.
“Whether it’s in your house or whether it’s with a lawyer or with a trustee company, to avoid the cost of having to look around for it.”
