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Why is it important to have a Will in New Zealand?

By Polina Kozlova - 19 Aug 2022

Dying without a will is far more expensive than paying a lawyer to have your will sorted. All that is required to administer an estate of a person who died leaving a will is to apply to a High Court for probate of the will. Dying without a will involves an application for intestacy, which is more complicated and costly than a probate application.


Intestacy involves a search for a will and if the deceased is a male, also a paternity search. If a person dies leaving a spouse/partner, the surviving spouse/partner is required to obtain independent advice on his/her entitlement under intestacy provisions and potential claims against the estate under the Property (Relationships) Act 1976. Until such advice from an independent lawyer has been obtained, the application for letters of administration on intestacy cannot be submitted to the court. Obtaining such independent advice prior to lodging an application is not a requirement for a probate application (when a person dies leaving a will).

Because of these additional steps, it takes at least three weeks longer to get the intestacy application ready to be sent to the court as opposed to a probate application.

Time delays mean family members may not be able to access your assets for a significant period of time.

Unpredictability/Surprise Element

A lot of people are not aware of intestacy provisions that are provided for in the Administration Act 1969. Many people assume their assets will automatically go to their partner/spouse.  Instead, your partner/spouse will receive the first $155K (this amount is prescribed by the legislation and subject to change) + 1/3 of your estate and your children will receive 2/3.

This is particularly important for blended families. If your asset pool is modest, any children from a first relationship, may be left with nothing. And, on the other hand, if your estate is large, your children may end up receiving more than your partner/spouse (which may not be what you intend).

If you die leaving no children or parents, your partner/spouse takes all of your estate.

If you die leaving no children but leaving parents, your partner/spouse takes $155K + 2/3, with your parents receiving the remaining 1/3.  This often comes as a surprise.

Cross Border Issues

This is where having a will becomes even more important. Issues often arise with succession involving assets in different countries or assets located in one country and the deceased having lived and died in another country.

For example, if you live and die in Italy (and have acquired a habitual residence there) while most of your assets are in New Zealand, it is likely that all of your moveable assets (i.e. bank accounts, shares, KiwiSaver etc) will be distributed under Italy's laws. Not only may this be very different from what you intended, it can also be very costly. An application for letters of administration to the New Zealand High Court will be required (since the assets are located in NZ) which is more complicated to begin with.

However, because a person died overseas and overseas law applies to moveable assets situated worldwide, the New Zealand court will require an affidavit from a lawyer practicing in the country where the deceased person died as well.  This requires multiple lawyers from different jurisdictions to be involved and can quickly become very expensive.

This additional cost and stress for those you leave behind can easily be avoided by making a Will in New Zealand before heading overseas.


If you have young children, it is really important that you nominate someone to be their guardian in the event that you and your partner/spouse die. If you don't do that, you have no certainty over who will look after your young children and be involved in important decisions relating to their upbringing.

Trusts and Wills

A lot of people who have a trust believe that they don't need a will because their assets are owned by the trust. Although it is true that most valuable assets will be owned by the trust, some (inevitably) will still be in your name - for example, KiwiSaver, personal bank accounts, vehicles, jewellery etc.

It is still important to have a will even if most of your assets are owned by a trust.

Separation when Married

Most people are not aware of the fact that if you are married and you have separated, your spouse stands to inherit your assets until the moment you have a marriage dissolution order (which takes two years to obtain).  Should you die or your spouse die within that period (from the date of separation until the date the dissolution is granted) the survivor and/or the children (depending on the terms of the will if any or otherwise depending on intestacy provisions) will inherit the estate.

The only way to avoid this is to update your will (or make a will if you don't have one) as soon as you separate from your spouse.


To find out more about making a will contact Polina or any member of our Wills and Estates team.


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