Are You One of the Millions of Kiwis Without a Will?

Did you know that approximately 50% of the adult population of New Zealand do not have a Will?

These alarming statistics sowed the seed behind Public Trust’s new campaign featuring an urn of ashes with an etching on the outside stating that the person actually wanted to be buried.

This humorous perspective makes a serious point about the potential perils of dying without a Will.

For most cases, the Administration Act 1969 governs intestate estates – where people die without a Will.  However a well written Will speaks volumes after you’re gone and will stand up to legal scrutiny.

Without clear instructions, the sniff of money can bring out the worst in people…

Jim McIlroy, Public Trust Estates Manager has seen family members fight over possessions. “It’s worth remembering that every asset has a story and can be valuable to people in different ways – the family car, holiday home or dinner service all tell a story. If items are not specified and disputes can’t be resolved, both parties will face bidding for it at auction.”

When it gets tricky, genealogists are often called in

Where someone dies without a Will and relatives need to be found, it can be quite complex and often involves having to track people down overseas using all sorts of innovative means. It can bring about some heart-felt moments, such as when families are reunited, sometimes after decades.

For 18 years, Jan Bonnett has traced many thousands of people who were beneficiaries of Wills.

Losing touch means losing valuable time which is costly – up to 8 weeks in an intestacy case.

Sometimes a Will names someone who has moved away and lost touch with everyone.  As a result the estate takes longer to settle and incurs more costs. This is due a myriad of time delays. Time delays from searching for a Will, to determining the family relationships and entitlements to tracking actual beneficiaries down.  On average an intestacy takes eight weeks longer than if there had there been a Will.

“In one case we had to try and find the family of an elderly man who didn’t  “officially exist”. It turns out he had assumed a new name after his father was held captive during the war. But the name change was never made official,” says Jim.

Sometimes it can take years to track down connections, although the Internet has made it easier.  Each estate is different and the genealogist uses official birth, death and marriage records, citizenship papers, electoral rolls, coroner’s reports, census data and phone books in the hunt to locate people.

In one case a woman who Public Trust traced asked if she could have a copy of the family tree. She died not long afterwards and her sister said that it had meant so much to her to find out about all her family before she died.

“There are so many stories like this that show the human and caring side of Public Trust’s work that not a lot of people know about,” he says.

Moral obligation crucial in the setup of a Will

About five per cent of the Wills that go through probate each year are contested. The bulk of these claims involve Wills that leave unequal shares to children or involve second families – with the children of a former marriage claiming against a surviving step-parent.

An example of this was in the case of a South Auckland farmer who left $1 million to his farm dogs, thereby disinheriting his two sons from a previous marriage. His widow and sons contested the Will. Under the Family Protection Act 1955, the judge was able to set aside the terms of the farmer’s Will.

The Family Protection Act enables family members, usually a spouse, child or grandchild but sometimes parents and step-children, to challenge a Will if it failed to make adequate provision for their maintenance and support.

The court then considers if there has been a breach of ‘moral duty’ by the Will-maker and takes into account the needs of the claimant, the size of the estate and any other competing moral claims.

A well-written Will advised by experts such as Public Trust, would take these factors into consideration.

Talk to Public Trust about your Will or Enduring Powers of Attorney.

Click here for more information.