Making a Will in New Zealand: The Legal Requirements
A valid will in New Zealand must generally be made by someone aged 18 or older, in writing, signed by the will maker, and witnessed by two witnesses who are both present at the same time. This page explains what the Wills Act 2007 requires and what can happen if a will does not meet those requirements.
This is general information about New Zealand law, not legal advice. For your own situation, consult a lawyer or your local Community Law centre.
What a will does
A will is a legal document that sets out what happens to a person's property when they die. It can name an executor to administer the estate, appoint guardians for children under 18, leave specific gifts, and set out how the rest of the estate is divided. A will only takes effect on the will maker's death and can generally be changed or revoked at any time before then, provided the will maker still has legal capacity to do so.
Who can make a will
Under the Wills Act 2007, a person must generally be at least 18 years old to make a valid will. There are limited exceptions: someone under 18 can still make a will if they are, or have been, married, in a civil union, or in a de facto relationship, if they are contemplating marriage or a civil union, if they are a serving member of the armed forces on active service, if they are a seafarer at sea, or if the Family Court has approved them making a will. The will maker must also have testamentary capacity, generally meaning they understand the nature of making a will and the extent of what they are giving away, at the time they sign it.
The formal requirements for a valid will
To be valid, a will must be in writing, signed by the will maker, or by someone else in the will maker's presence and at their direction, and witnessed by two witnesses who are both present at the same time as the will maker signs. Each witness then signs the will themselves, generally in the will maker's presence. Anyone aged 18 or older can generally act as a witness. Because a will is likely to be relied on many years after it is signed, it is worth keeping a copy in a safe, accessible place and telling the executor where the original is stored.
Witnesses, beneficiaries, and gifts that can fail
A witness to a will, or that witness's spouse, civil union partner, or de facto partner, should not also be left a gift in the will. If they are, the gift to them can fail, even though the rest of the will remains valid. New Zealand law allows some exceptions to this, for example where there are enough other independent witnesses, where the gift repays a genuine debt, where the other beneficiaries agree, or where the High Court is satisfied the will maker understood and freely intended the gift. Because these exceptions depend on the specific facts, the safest approach is simply to avoid using a beneficiary, or their partner, as a witness.
What happens if a will does not meet these requirements
A document that does not meet the formal writing, signing, or witnessing requirements is not automatically a valid will. However, the High Court has a discretionary power, under section 14 of the Wills Act 2007, to declare such a document valid if it is satisfied the document expresses the deceased person's testamentary intentions. This power is not guaranteed to apply. It generally depends on evidence that the document reflected a settled, final decision about the person's estate rather than a draft or an unfinished intention, and the court decides this case by case. Relying on this power is far less certain than making a will that meets the formal requirements from the outset.
Related New Zealand wills and estates topics
An enduring power of attorney deals with decisions made while someone is still alive but unable to manage their own affairs, which is a different document from a will. After death, an executor named in a valid will may need to apply for probate before they can deal with the estate. For more on wills, powers of attorney, and estates in New Zealand, see the wills and estates guide.
Frequently Asked Questions
Do I need a lawyer to make a valid will in New Zealand?
No. A will is valid if it meets the Wills Act 2007 requirements: the will maker is old enough and has capacity, the will is in writing, signed by the will maker, and witnessed by two witnesses present at the same time. Many people still choose to use a lawyer or a trustee corporation because of the risk of a document being unclear or successfully challenged, but using one is not a legal requirement.
Can someone under 18 make a will in New Zealand?
Generally no, but there are limited exceptions under the Wills Act 2007, including someone under 18 who is or has been married, in a civil union, or in a de facto relationship, who is contemplating marriage or a civil union, who is on active service in the armed forces, who is a seafarer at sea, or who has Family Court approval to make a will.
What happens if a witness to my will is also left a gift in it?
The gift to that witness, or to their spouse, civil union partner, or de facto partner, can fail even though the rest of the will stays valid. There are some exceptions, for example where there are enough other independent witnesses or the High Court is satisfied the gift was genuinely intended, but the safer approach is not to use a beneficiary or their partner as a witness.
Can a will that was not signed or witnessed properly still be valid?
It is not automatically valid, but the High Court can declare a document valid as a will under section 14 of the Wills Act 2007 if it is satisfied the document clearly expresses the deceased person's testamentary intentions. Whether the court will do this depends on the evidence in each case, so it is not something a will maker should rely on instead of meeting the formal requirements.
What happens if I die without a will in New Zealand?
Dying without a will is called dying intestate. Instead of a will directing who inherits, the estate is distributed under a separate set of statutory rules, and the High Court appoints an administrator rather than confirming an executor the deceased person chose.
Sources and References
- Wills Act 2007(legislation.govt.nz).gov
- New Zealand Law Society - Making a will and estate administration(lawsociety.org.nz).gov
- New Zealand Government - Wills, probate and estates(govt.nz).gov
- Ministry of Justice - Apply for probate and get a copy of a will(justice.govt.nz).gov