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Wills and Lifetime Planning

This publication guides practitioners through taking instructions, advising on, and preparing wills, powers of attorney, and advance directives.

2 Matter Plans

Overview

The Wills commentary addresses key considerations, including tax implications, the use of testamentary trusts, validity requirements, and dealing with assets in multiple jurisdictions. The Powers of Attorney commentary covers both ordinary and enduring powers of attorney and advance directives, including guidance on execution, revocation, and suspension.

The Reference materials folder includes guidance on electronic signing and remote witnessing, and the Getting the matter underway folder contains essential compliance and client engagement documents.

The extensive Retainer Instructions ensure that all necessary information is gathered from the client at the outset of the matter, enabling practitioners to provide accurate and appropriate advice. This supports the preparation of suitable wills or powers of attorney for single clients or complex family situations, including those with extensive or intricate asset portfolios. Precedents offer practical options for addressing blended families, digital assets, businesses, tax-efficient planning, and rights to occupy.

Precedents in this publication include:

  • Library of will precedents for a range of situations and clients;
  • Library of clauses for wills, including:
    • Discretionary and family trusts;
    • Quarantining assets, excluding beneficiaries, and burial wishes;
  • Library of attestation clauses;
  • Ordinary and enduring powers of attorney;
  • Advance directive;
  • Library of clauses for powers of attorney.
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2 Matter Plans Included

  • Item icon ALERTS - Nil
  • Item icon Full Commentary - Wills
  • Folder icon Reference materials
    • Item icon AI Prompts
    • Item icon Electronic Signing and Witnessing
    • Item icon Further information
  • Item icon Overview
    A will contains the will-maker’s instructions to their executor about how their estate is to be distributed after their death. Distribution for a person who dies without a valid will is determined by the Administration Act 1969. Most wills are straightforward, with spouses or partners leaving their ...

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  • Folder icon A. Getting the matter underway
    • Item icon File cover sheet - Wills
    • Item icon To do list - Wills
    • Item icon First steps
    • Item icon Taking instructions for wills
      Written instructions relating to the creation of a will should be documented. If the will is contested, then these instructions will explain the deceased’s intentions. The lawyer’s notes also can shed light on the deceased’s wishes. The Retainer Instructions in the matter plan will help a lawyer to ...

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    • Item icon Informal wills
      Under s 14 of the Wills Act 2007, if a will fails to meet the formal requirements then the court may admit an informal will to probate if satisfied:

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    • Item icon Client details and verifying identity
    • Item icon Retainer instructions - Wills and Powers of Attorney - Individual
    • Item icon Retainer instructions - Wills and Powers of attorney - Spouses
    • Item icon Testamentary capacity
      The leading authority concerning testamentary capacity is Banks v Goodfellow (1870) LR 5 QB 549. Chief Justice Cockburn stated, at 565:

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    • Folder icon If required - Testamentary capacity
      • Item icon Testamentary capacity checklist
    • Item icon Initial letter to client enclosing Client Care and Terms of Engagement
    • Item icon Client Care and Terms of Engagement
    • Item icon Scope of work - Wills
    • Item icon Scope of work - Wills and enduring powers of attorney
    • Folder icon If required - Advice to client on testamentary discretionary trusts
      • Item icon Letter to client advising on testamentary trusts
      • Item icon Enclosure - Benefits of testamentary discretionary trusts
    • Folder icon If required - Authority for documents
      • Item icon Letter to lawyer with authority to forward documents
      • Item icon Authority to lawyer to forward documents
    • Item icon Time and costs estimates
    • Folder icon If required - Updating costs disclosure
      • Item icon Letter to client updating costs estimate
    • Folder icon General deeds, agreements, execution clauses and statutory declaration
      • Item icon Deeds and Agreements
      • Folder icon Deeds
        • Item icon Deed for general use
        • Item icon Deed of guarantee
        • Item icon Deed of release
        • Item icon Confidentiality deed
        • Item icon General deed of indemnity
        • Item icon Deed of assignment of agreement
        • Item icon Deed of gift
      • Folder icon Agreements
        • Item icon Agreement for general use
        • Item icon Heads of agreement
        • Item icon Non-disclosure agreement - Formal
        • Item icon Non-disclosure agreement - Informal
      • Folder icon Library of clauses for deeds and agreements
        • Item icon Amendment clause
        • Item icon Confidentiality clause for defined information - All parties
        • Item icon Confidentiality clause for defined information - One party
        • Item icon Confidentiality clause for terms of agreement - All parties
        • Item icon Confidentiality clause for terms of agreement - One party
        • Item icon Costs clause
        • Item icon Counterparts clause
        • Item icon Dispute resolution clause
        • Item icon Events beyond control clause
        • Item icon Governing law and jurisdiction clause
        • Item icon Interpretation clause
        • Item icon No assignment clause
        • Item icon Notices clause
        • Item icon Severance clause
        • Item icon Waiver clause
        • Item icon Whole agreement clause
      • Folder icon Execution clauses
        • Item icon Execution clauses - Agreements
        • Item icon Execution clauses - Deeds
      • Folder icon Statutory declaration
        • Item icon Statutory declaration
        • Item icon Standard annexure note for documents
  • Folder icon B. Will considerations
    • Item icon Formal requirements
      The formal requirements under s 11 of the Wills Act 2007 for a valid will are:

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    • Item icon Revocation, marriage, divorce and revival
      The first provision in a will is usually the revocation of previous testamentary dispositions. Revocation is effected by a new will, by a separate written revocation, or by intentional destruction: s 16.

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    • Item icon Executors and trustees
      Usually, the executor and trustee will be the same person wearing different hats – executor, trustee and maybe beneficiary as well. The appointment can be by:

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    • Item icon Burial and cremation
      Clients often wish to express their burial or cremation wishes or give directions for their corporeal remains. These wishes are directions only and not binding on an executor. They are of limited value especially if the will is not read until after the funeral. It is better for the will-maker to ...

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    • Item icon Guardianship of minor children
      A will-maker may wish to appoint a testamentary guardian for a minor child in their will. A testamentary guardian does not have the right to day-to-day care of a minor. However, their appointment automatically makes them a legal guardian and gives them standing in court should a dispute arise. They ...

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    • Item icon Dispositions of property
      Disposition of property is the area in which true complexity can arise.

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    • Item icon Gifts to charities
      All charities in New Zealand are assigned a unique identification number, which is usually located on their website. Including this number in the bequest will remove any doubt as to the intended recipient. Occasionally a will-maker may wish to limit how and where the gift can be used.

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    • Item icon Life insurance claims
      Life insurance claims only become part of the estate if the person who has died owns the policy. Often their partner owns the policy in which case the payment goes directly to the partner and does not form part of the estate.

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    • Item icon Māori land
      There are special laws governing who can inherit Māori land. There are many Māori community law centres that can help clients with whenua Māori issues at little or no cost. It makes sense to refer clients in the first instance to them but invite them to come back if the community law centre is ...

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    • Item icon Multi-jurisdictional estates and international wills
      Where there are assets outside of New Zealand, and especially outside Commonwealth countries, a client is well advised to seek legal advice in that country. When a will is being completed in another jurisdiction, then the New Zealand will should be limited to their assets in New Zealand.

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    • Item icon Claims against the estate
      A will should be drafted with a view to avoiding claims on the estate, but even with the greatest care and foresight, this will not always be possible. A will-maker may attempt to expressly exclude a beneficiary by making a statement to that effect in the will, or in a separate document or ...

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    • Item icon Challenging the validity of a will
      A challenge to a will questions its validity, not the fairness of its provisions. Family members, dependents, and beneficiaries named in a will may distrust the will’s validity and claim it should not stand as the will-maker’s last will.

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    • Item icon Intestacy
      Part 3 of the Administration Act 1969 applies when a person dies without a will. A de facto partner will usually only be entitled under the laws of intestacy:

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  • Folder icon C. The will
    • Folder icon Wills for an individual
      • Item icon Individual will
      • Item icon Individual will with spouse as trustee
      • Item icon Individual will with blended family
      • Item icon Individual will creating testamentary discretionary trust
      • Item icon Individual will creating multiple testamentary discretionary trusts
    • Folder icon Wills for spouses
      • Item icon Client 1 will for spouses with client 2 as trustee
      • Item icon Client 2 will for spouses with client 1 as trustee
    • Folder icon Wills for blended families
      • Item icon Blended family
        For will-makers in second relationships, with children from a previous one, leaving sufficient provision for the will-maker’s current partner, but protecting the interests of the will-maker’s older children is an important issue. Problems can arise even if the blended family is harmonious. If the ...

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      • Item icon Individual will with blended family
      • Item icon Client 1 will for blended families with client 2 as trustee
      • Item icon Client 2 will for blended families with client 1 as trustee
    • Folder icon Wills creating testamentary discretionary trusts
      • Item icon Testamentary discretionary trusts
        These trusts vest the assets of the estate in the trustee with discretion to determine which of the nominated beneficiaries are to receive the income and capital of the trust. As the beneficiaries have no interest in the assets they are not available to their creditors, they are not assets in their ...

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      • Item icon Individual will creating testamentary discretionary trust
      • Item icon Individual will creating multiple testamentary discretionary trusts
      • Item icon Client 1 will creating testamentary discretionary trust with client 2 as executor
      • Item icon Client 2 will creating testamentary discretionary trust with client 1 as executor
      • Item icon Client 1 will creating multiple testamentary discretionary trusts with client 2 as executor
      • Item icon Client 2 will creating multiple testamentary discretionary trusts with client 1 as executor
    • Folder icon Library of clauses, deeds, contracts, and codicils
      • Item icon Assets - Convert into money clause
      • Item icon Assets - Excluding will made in other nominated jurisdiction
      • Item icon Assets - Asset management
      • Item icon Beneficiaries - Basic holding of estate in trust clause to children
      • Item icon Beneficiaries - Some reasons for excluding beneficiaries
      • Item icon Beneficiaries - Establish a fund for a particular beneficiary
      • Item icon Beneficiaries - Gift not to vest until majority clause
      • Item icon Beneficiaries - Gift conditional upon survival or attaining an age
      • Item icon Bequest - Charity
      • Item icon Bequest - Deemed disclaimer of an interest under this will
      • Item icon Bequest - Digital rights
      • Item icon Bequest - Establish a monthly payment not an annuity
      • Item icon Bequest - Right of occupation of home
      • Item icon Bequest - Life estate clause
      • Item icon Bequest - Option - Grant an option to purchase to a beneficiary
      • Item icon Bequest - Personal chattels
      • Item icon Bequest - Pets
      • Item icon Body - Burial in reserved plot
      • Item icon Body - Burial with modest funeral
      • Item icon Body - Cremation
      • Item icon Body - Funeral service location
      • Item icon Body - Light hearted directions as to remains
      • Item icon Body - Medical research purposes
      • Item icon Body - Medical research purposes excluded
      • Item icon Body - Organs for donation or research purposes
      • Item icon Codicil
      • Item icon Divorce - Clause in contemplation of divorce
      • Item icon Guardians - Appointment of guardians
      • Item icon Guardians - Appointment of guardians when other parent has not survived
      • Item icon Mutual wills - Contract to make mutual wills
      • Item icon Lawyer - Direction for appointment of lawyers
      • Item icon Lawyer - Lawyer executor - Clause to charge fees
      • Item icon Trustee - Exclusion of liability clause
      • Item icon Trustee - Family trust clauses
      • Item icon Trustee - Separate trustee for minor beneficiary
    • Folder icon Library of testamentary discretionary trust provisions
      • Item icon Testamentary discretionary trust provisions - Concise
      • Item icon Testamentary discretionary trust provisions - Extensive
      • Item icon Testamentary discretionary trust provisions creating several trusts
    • Folder icon Library of attestation clauses
      • Item icon Blind
      • Item icon Can read but unable to write
      • Item icon Can read but unable to write or make a mark
      • Item icon Can write but unable to read
      • Item icon Unable to read but can speak and understand spoken English and can sign
      • Item icon Unable to read or speak English but can sign
      • Item icon Unable to read or write
      • Item icon Unable to speak or read English or write
    • Item icon Multi-jurisdictional estates and international wills
      Where there are assets outside of New Zealand, and especially outside Commonwealth countries, a client is well advised to seek legal advice in that country. When a will is being completed in another jurisdiction, then the New Zealand will should be limited to their assets in New Zealand.

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    • Item icon Letter to client with draft will for review
  • Folder icon D. Execution
    • Item icon Execution
      Signing a will Section 11 of the Wills Act 2007provides how to execute a will.

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    • Item icon Letter to client advising will is ready for signing
    • Item icon Letter to client with reminder will is ready for signing
    • Folder icon If required - Sending will to client for signing
      • Item icon Sending a will to a client to be signed
        A lawyer instructed to send a will to a client for execution will need to help the client complete the process appropriately. An Instructions for Signing enclosure is available on the matter plan. These instructions can be sent to the client with the will.

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      • Item icon Letter to client with will to sign
      • Item icon Enclosure - Instructions for signing a will
  • Folder icon E. Finalising the matter
    • Item icon Finalising the matter
      Storing a will can be a service offered by the firm, or clients can store their own will. Clients who store their own will should be encouraged to let others know where to find the will in the event of their death.

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    • Item icon Revising the will
      Will-makers should be encouraged to review their will and life insurance arrangements regularly. This may not be of great significance in the case of small estates or when the estate is to pass to their spouse then children, but it may be important in other situations.

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    • Item icon Letter to client finalising the matter
    • Item icon Example invoice
    • Item icon Invoice recital - Wills
    • Item icon Closing the file
    • Item icon File closing checklist
  • Item icon Comments and suggestions for By Lawyers

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A team of legal professionals contribute to By Lawyers' publications, all helping to ensure that content is updated regularly to reflect changes in legislation, practice, and procedure.

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