Wills and bequests — some common questions

“I always advise my clients who wish to make a bequest to a charity for a specific purpose to discuss the proposed gift with the charity concerned.” — Ross Craig

Ross Craig, of Craig Griffin & Lord Barristers and Solicitors, became a friend of the House having attended one of our Bequest Society luncheons in 2007. From this meeting, Ross and the Rotary Club of Newmarket (of which he is a member) chose to support our Family Art Programme in 2007. Consequently Ross has also been involved in facilitating ‘gifts’ to the House through private philanthropic trusts he administers. Ross is a qualified solicitor and his practice is involved in establishing bequests, wills, philanthropic trusts and the ongoing administration of said trusts. We asked Ross to help us clarify a few questions surrounding wills and bequests and here's what he had to say:

What is the legal age for making a will?

Any person 18 years or over can make a will. A person under 18 years may make a will if he or she is or has been either married, in a civil union or a de facto relationship. A person under 18 years may make a will if he or she has satisfied a Family Court that he or she understands the effect of making a will and has the approval of the Family Court to make a will. Also a person under 18 years of age can make a will if he or she is a military or seagoing person, or has been ordered to join the Armed Forces or join a ship as a seafarer.

When should someone make a will?

Any person legally entitled to make a will who has any assets. If that person does not make a will and dies, the laws of intestacy come into force and that may not be what the deceased person would have wished to occur.

What exactly is a bequest?

The term ‘bequest’ or ‘legacy’ in its ordinary sense is applied to a gift of money or chattels but can also be capable of meaning such things as a devise of land or a gift of shares. There are charities in New Zealand who have been devised a farming or commercial property and have continued to administer the property as a means of providing a useful annual income.

Can you alter an existing will to include a bequest?

Yes, you do not have to execute a new will. The bequest can be dealt with by way of a simple codicil to your will.

Can I change my mind at a later date?

Yes, provided you are of sound mind, you can change the provisions contained in your will or codicil by means of a new will or an additional codicil.

Can you specify the purpose for which the bequest is being made?

Yes, you can, but I always advise my clients who wish to make a bequest to a charity for a specific purpose to discuss the proposed gift with the charity concerned. There have been many cases in the past where the specific purpose for which the bequest has been made has ceased to exist or has changed. The cost of litigation in such cases can be substantial.

How much will it cost to have a will drawn up or to include a bequest in an existing will?

Your will is probably the most important document you will sign during your lifetime. There are no set legal charges for the preparation of a will or a codicil. Depending on the complexity of the will, your family lawyer can prepare a will or codicil for a reasonable fee.

How often should a will be reviewed?

There are wills in my firm’s deeds that have deposited there for over sixty years. It depends on your personal circumstances and your family relationships. An increase in wealth or a death in the family can provide a reason to review your will.

Can someone make their own will?

Yes, but you do so at your peril. One of the first files I had when I joined a law firm in Dunedin dealt with a homemade will. It costs nothing to make, but by the time the matter was referred to the Supreme Court the deceased’s family had every reason to wish the deceased had gone to a lawyer and had a legal will drawn up.

As I have already mentioned, your will is one of the most important documents you will sign during your lifetime. It is much safer to seek the advice of your solicitor when making a will.

May I suggest that, besides your will, you should have Enduring Powers of Attorney both for personal care and for property. If at any time you become mentally incapable of dealing with your own affairs, the Enduring Powers of Attorney are invaluable. It gives you the opportunity to decide who will care for you or deal with your assets. If you go into a Retirement Village, you will be required to have them in place. You are never too young to execute Enduring Powers of Attorney. I have had to deal with young people who have suffered brain injuries and whose families have been restricted in administering their affairs because of the lack of Enduring Powers of Attorney.

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