A Will allows you to set out how you want your assets to be dealt with after your death.
Anyone of sound mind who is over 18 years can make a Will.
Section 11 of the Wills Act 2007 (the Act) provides the rules around how a Will must signed and witnessed. With the guidance of a lawyer, who can explain how best to navigate the law and allow you provide for your loved ones, you can ensure that you create a valid Will.
In order to create a valid Will it must be in writing, signed at the end by you and two non-beneficiary adult witnesses who must all be present as each party signs and is intended by you to take effect as a Will.
You can among other things:
o appoint one or more executors – the person responsible for carrying out your wishes;
o appoint a testamentary guardian for your children;
o set out your funeral arrangements;
o advise who your beneficiaries will be; and
o include a bequest or gift to a charity.
You can revoke, replace or add to your Will at any time.
Your lawyer will hold the original on your behalf and provide you with a copy. You should let your executor and family or friends know where your Will is kept.
Validating a Will
The Act also allows the Courts to validate a Will that hasn’t been witnessed or executed properly – it gives judges more flexibility when deciding what constitutes a valid Will. A high proportion of applications to validate a Will are successful. Evidence of the will-maker’s intent is paramount so if your wishes are clearly set out and you show that you intend the document to be your Will, it is likely that the Court will recognise the document as a valid Will.
Signing a Will under lockdown
The Government has made a temporary law change to modify the requirements for signing and witnessing Wills under the Act. There is now an Immediate Modification Order (Order) in place which changes the requirements making it easier to sign and witness a Will under lockdown.
The Order allows someone to sign your Will on your behalf (designated person) via audio-visual link (AVL) if you cannot print the document and sign it yourself. Signing and witnessing can be done using AVL such as Zoom, Skype, Facetime etc.
While the Order is in place the will-maker or designated person can have their signature witnessed by AVL. The designated person must sign in front of the will-maker and the witnesses. The witnesses will also sign and complete their details in front of the will-maker and/or designated person during the AVL session.
It will need to be stated in the Will that it is signed this way because an Order is in force.
If you are signing the Will yourself a photograph or scan of the signed Will must be sent to your lawyer as soon as practical. Your witnesses must also send a photograph or scan of the Will they have witnessed to your lawyer.
The changes made are temporary. The law will return to normal once the Order is revoked.
It is a good idea to retain the physical copy you have signed and keep it somewhere safe.
If you make a Will while the Order is in force it is a valid Will. You do not need to make another Will unless you want to change or revoke your Will.
Age Concern Wellington has an agreement for with Mahony Horner Lawyers for discounted legal services. Please call Age Concern Wellington on 04 499 6648 to receive a referral and benefit from the discounts.
Mahony Horner Lawyers would be happy to assist you with your Will under the new witnessing requirements during lockdown.