(Chris Kelly – Greg Kelly Law Limited)
Busting Some of the Myths Regarding Wills
There are a number of common assumptions made about access to a person’s Will and what happens after the Will-maker has died. Television and movies often contain scenes in which, after a person’s death, the estate lawyer and all the beneficiaries get together for a formal reading of the Will. While there is nothing to prevent this from happening, there is no requirement to do so and it rarely happens in New Zealand. Usually the estate lawyers write to each of the beneficiaries named in the Will to advise them of their entitlements.
Who is Entitled to a Copy of a Person’s Will?
A Will is a confidential document belonging to the Will-maker. It only comes into effect upon the Will-maker’s death. No-one (without the consent of the Will-maker) is entitled to a copy before the Will-maker dies. Lawyers are required by the Rules under the Lawyers and Conveyancers Act 2008 to keep all information relating to a client confidential. A person’s property attorney or property manager, however, can obtain a copy of the Will. Property managers and property attorneys can obtain the Court’s approval of a new Will and therefore need to know what the existing Will says in case, unwittingly, they sell or dispose of an asset that is specifically gifted under the Will.
Of course, you may wish to provide a copy of your Will to certain people while you are alive. These could be, for example, the executors you have named in your Will, or your spouse or partner. Alternatively, you may just wish to let them know who holds the Will. This will avoid your family spending time trying to locate your Will after you have died.
On a person’s death, the only people entitled to a copy of the Will are the executors and beneficiaries named in the Will. The usual practice in New Zealand is for residuary beneficiaries (those entitled to a share of the residue of the estate once all specific legacies and debts are paid) to receive a full copy of the Will. If you are receiving a specific amount of money or particular item, you are notified about that particular gift but are not usually given a copy of the Will.
There is no central registry in New Zealand where all current Wills are held. However, once Probate of a Will has been obtained (Probate is the process of proving the last valid Will in the High Court and is required for estates with assets of more than $15,000 at any one institution), a copy of Probate with the Will attached is held in the High Court and becomes a public record. Occasionally people record in their Wills the reasons why they have disposed of their assets in a particular way. You should be careful of doing this, as the probated Will becomes a public document, and therefore so will your reasons. Providing an explanation for why you have dealt with your assets can be helpful, however, if a claim is made on your estate. An alternative way is to record your reasons in a separate note which is held with the Will but doesn’t form part of it. The note will note be produced for Probate and therefore will not become a public document.
DISTRIBUTING THE ESTATE
Many people think that once Probate is obtained the proceeds of the estate can be distributed immediately. This is not always the case. Best practice in New Zealand is to wait about six months before distributing the estate. This allows time for the executors to be notified of any claims to be made on the estate, property to be sold and estate affairs to be sorted out. In most cases, if a claim is made on an estate, the claimant must notify the executor of their claim within six months of the grant of Probate. Executors can be held personally liable if a claim is made within six months and the estate has already distributed. In some cases the distributions can be ordered back into the estate.