When do you need to update your will?

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It is amazing how many clients write Wills and then lock them away in the bottom drawer without ever thinking about them again. Your Will should be a document that you are constantly reviewing and amending as things change in your life. Keeping your Will updated is best practice as it can reduce the risk of claims being made against your estate and ensure less stress for your family.

We have posed a number of questions below. If you can answer “yes” to any of these questions, then we strongly recommend that you consider reviewing and/or updating your Will.

Is your Will more than five years old?
The laws in New Zealand are always changing which is why it is important to review your Will periodically. However, just because a long time has passed does not necessarily mean that your Will must be updated but it is best to check. One of the most important things to think about is whether or not the circumstances of you, your executors or beneficiaries have changed.

Have you been married since your last Will?
If you have been married then it is imperative that you update your Will. Wills are voided by marriage unless a special contemplation of marriage clause is written into the Will. In this case, you will be treated as dying without a Will (dying intestate) and the Administration Act will apply. 

Have you separated from spouse/partner since your last Will?
If you have separated (but not divorced) from your spouse or partner and have not updated your Will since the separation, the Will is still valid meaning that your ex-spouse or partner would still receive any benefit left to them under your Will. If this is not what you want then again, it is crucial that you update your Will.

Have you had a Divorce/Dissolution of Marriage since your last Will?
If you have been divorced since your last Will, any reference to your ex-spouse is simply removed from the Will but every other clause remains. If there are no provisions for what would happen if your ex-spouse were not to take under the Will, then any gift they were to receive would fall into your residuary estate.

If you have not legally resolved your relationship property your ex-spouse may still be entitled to make a claim against your estate.

Have you had a child/children since your last Will? (Or grandchildren)
If you have children who are not named in your Will, they may not inherit anything. You might also want to consider naming a testamentary guardian for any children you have had.

Has any person named in your last Will died?
If a named executor or beneficiary has died, this means that Will will be read removing any reference to them, so you should consider the overall effect this has on the distribution of your assets as it may not be what you initially intended.

Have you set up a family trust or company since last Will?
If you want to make sure all of your property goes into your family trust then you will have to provide for that in your Will. You can also appoint replacement trustees of your family trust in your Will as well, together with an “appointer” who has the ability to appoint and remove trustees. If you don’t, the provisions of your trust deed will determine the replacement trustees. We always recommend reviewing your Will when creating or making changes to a Trust. The same applies for a company; you should make it clear exactly what you want to happen with the shares in any company that you own.

Have your assets and/or debts changed?
It is important that your Will reflects your current assets and liabilities. A gift will simply fail if you no longer own the asset and the beneficiary will not be able to take something else in substitution for the failed gift. 

You may also have obtained a new asset that you wish to go to a specific beneficiary, that is not mentioned in your current will.

Wills should be reviewed regularly, and updated immediately if you have any major life changes to ensure that your wishes are reflected.  When was the last time you reviewed your will?

If you wish to review your Will, contact solicitor, Carolyn Ranson by phone on 09 837 6891 or email carolyn.ranson@smithpartners.co.nz


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