A young person decided to draft his own Will using a template he found online. 

He decided various parts of the example Will were not relevant to him, so he deleted them.  He simply said that the proceeds of his bank account were to go to his sister, as he believed that was the only asset he had.  He did not include a clause regarding where the residue/balance of his estate was to go.

He had completely forgotten that he had a KiwiSaver scheme, which would form part of his estate.  In this case, his Will didn’t cover this, as he did not have a “residue” clause. 

If he had passed away without a proper Will that dealt with all his assets his family would have had to follow a much more complicated process of applying for that part of his estate to be dealt with by way of ‘intestacy’ (i.e. what the law says about how estates must be distributed) rather than by Will.

What is a Will? A Will is a document made by an individual that:

1.    Sets out what is to happen with their property after they die and/or appoints a testamentary guardian for their children under the age of 18; and

2.    Is signed by the Will-maker and two independent witnesses in the physical presence of each other (all three people together at the same time).

While you may think a Will is easy to draft and sign, there are many ways things can go wrong, either with the content (e.g. the wording you use may not end up with the result you intended) or the signing (e.g. you may not sign the Will correctly so your family has to gather evidence and apply to the High Court for the document to be declared a valid Will).

The following are some important points to consider when it comes to deciding how to structure your Will (and reasons why you should take professional advice when drafting a Will).

What if your preferred beneficiary is gone?

What do you want to happen if a beneficiary in your Will dies before you? Do you want their children(if any) to receive their share, or is there someone else you want to receive that share of your estate?

For example, say your child predeceases you and your Will left everything to that child without specifying that if your child did not survive you it was to go to their children.

If your child died before you, and you had no backup provisions, then that distribution in your Will would fail. While you did have a Will, those responsible for administering your estate would have a more lengthy and expensive process to follow to get Court approval to distribute it. See our article regarding the importance of ensuring your Will allows for changes in your circumstances.

What do you want to happen if a charity you named as a beneficiary no longer exists?

What if a charity you have left money to you in your Will no longer exists (been wound up or has merged with another charity)? Do you want that provision in your Will to fail or would you want the executor of your Will to be able to pick a charity that serves similar purposes to that charity to receive the funds instead?

Will wording – sometimes less is more

Too specific

If you are making gifts in your Will, you should consider the wording around the gift. Being too specific in describing a gift may mean the gift might fail if the item you wish to gift no longer exists.

For example, if you choose to only gift a particular property to your child, and upon your death, you have either sold that property, or bought a replacement property, before you die, then the gift of that property described will fail.

Splitting your estate into particular assets instead of shares of the residue

We recommend that you do not try to divide your estate into particular assets as you may no longer have those assets when you die, or the value of those assets could have changed dramatically over your life.

For example, say you left any funds in your ANZ bank accounts to your friend and when you signed your Will you had $50,000 in your ANZ bank accounts.

When you passed away 10 years later you could have:

a)    spent most of the money in your ANZ bank accounts so there was only $1,000 left for your friend;

b)    switched banks so you had no ANZ bank accounts, so your friend received nothing; or

c)    sold a property just before you died and had the proceeds transferred to your ANZ account temporarily, so there was $2,000,000 in your ANZ bank accounts.

Of course it is hard to know for sure what assets you will have at the time of your death.

We therefore recommend that the Will not specify any assets, and instead you word your Will so that the whole of your estate will be divided into shares, and you specify how those shares are to be divided.

For example, dividing your estate into three parts – two parts to share equally between your siblings and one part to a charity.

This ensures that whoever you want to have the largest share of your estate will take the largest share regardless of the actual value of your estate when you pass away.

Of course sometimes leaving a particular assets is appropriate, such as if you wanted a particular book collection to go to a relative that you know will appreciate it.

Will that asset actually form part of your estate?

Your Will can only deal with your personal assets in your sole name.


If you do not personally own a particular property, and instead it is owned by a trust, then the Trust Deed will determine how the trust assets are dealt with. 

You would need to check the Trust Deed before trying to deal with any trust assets in your Will, but in general you cannot do anything with trust assets via your Will.

Joint assets

If you own assets jointly with someone else, such as if you have a joint bank account or own a property as joint tenants with another person, and the other person survives you, then the survivor will become the sole owner of that asset regardless of what you said was to happen in your Will.

You can leave your interest in jointly-owned assets specifically held as tenants in common in your Will, but we suggest you get legal advice about the assets’ ownership first.


If you have life insurance then you will need to check who the policy holder is. If you are the policy holder then it will form part of your estate.

If your insurance policy names another person as the beneficiary of the policy, then on your death it will be the property of the named person, not part of your estate.

Legal issues with your Will?

Your Will may not be a valid Will if it was not signed, or was signed incorrectly.  Equally there can be issues if your Will did not specify that all previous Wills were revoked.  All such issues can lead to a long and costly Court process for your loved ones when you pass away.

Have you left someone out of your Will?

Certain relatives can make a claim against your estate if adequate provision is not made for them in your Will.

You cannot stop someone from making a claim, but you can leave an explanation in your Will to explain why you have left less, or nothing at all, to a particular person, and this can be used as evidence of your reasoning if a claim goes to Court.

Sorting out what will happen upon your death can involve some tricky considerations and difficult decisions. It pays to get legal advice from a legal professional who can help you draft and sign a Will that gives full effect to your final wishes.


Leading law firms committed to helping clients cost-effectively will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins we have an experienced team who can answer your questions and put you on the right track.

Andie Donnelly

Senior Lawyer