Your Last Will and testament – Your Intent…2019-08-20T12:41:11+13:00

Your Last Will and Testament – Will and Your Intent

Auckland Lawyers

5 November 2010

Will and Your Intent

by Ian Mellett of Quay Law Solicitors

In this legal article, Auckland lawyer Ian Mellett of Law Firm, Quay Law discusses the importance of regularly reviewing and updating your Will and last wills and testament, which is a very important document that formally sets out how your assets are to be dealt with upon your death. A recent media article has highlighted this aspect as follows:

Will and your intent – Your last will and testament

Don Wilkinson, a police officer tragically slain in September 2008, executed a Will with the Public Trust in 1985, when he was 23 years old. At that stage his assets comprised two guitars and a second-hand car.

It appears that Don Wilkinson was a frugal individual who had remained unmarried and childless and by the time he was killed, his estate had grown to $2 million.

His Will effectively bequeathed “the whole of my estate both real and personal” to Ron Wilkinson. Ron was Don’s adoptive father and the wording contained in the Will has resulted in Ron being the sole beneficiary of the Will leaving Don’s mother, Bev Lawrie, without a penny. His parents have been separated since 1983.

According to the media, Ms Lawrie and other family members and friends say Don Wilkinson and his mother were very close, and he would not have wanted her left with nothing.

As Don was killed two years ago his mother is now unable to contest the Will under the Family Protection Act, as potential claimants have 12 months after a Will is probated to bring a claim.

Reviewing your Will

It is good practice to review your Will on a regular basis. Life takes its course and situations change. We have compiled a list indicating some of the situations that could prompt you to alter your Will:

  • The birth of a child
  • The adoption of a child
  • The commencing of a relationship
  • The ending of a relationship
  • The death of a family member, executor or beneficiary
  • The changing value in any of your assets
  • The receiving of a large inheritance
  • Moving countries, or
  • The purchase of a home or business.
last will and testament

There are certain events that will automatically change your present Last Will and Testament. Under these circumstances, a revision or renewal of your Will should necessarily be conducted. These events include

  • Getting married
  • Getting divorced and
  • The birth of a child or adoption of children.

Dying intestate

We are often asked what happens if a person dies without a Will. If this situation occurs you are said to have died intestate. The administration of your estate is then governed by the provisions of the Administration Act 1969 which sets out a statutory regime to be strictly followed. Your wishes are unfortunately not relevant.

What else should you consider in your Last Will and Testament?

We also recommend that you regularly review your entire estate planning structure. People are inclined to view estate planning in terms of investments, property, finances and assets. Yes, it is all of these things but the focus of proper estate planning should be the individuals who will benefit from your efforts and legacy. This may initially be yourself and your partner but will obviously need to include your children and possibly other loved ones after your death. Failure to have an appropriate estate planning structure in place can have disastrous consequences for all concerned.

We at Auckland law firm, Quay Law recommend that you seek professional legal advice with regard to both your Will and any related estate planning aspects. Your NZ lawyer can provide you with the requisite advice and guidance to ensure that your affairs are in order and that your wishes can effectively be implemented once you have passed away. This will give you the certainty and peace of mind that your loved ones are looked after in the manner you intended.

Please feel free to contact Ian Mellett (BComm LLB H Dip Tax) at Auckland law firm Quay Law for more information, or if you have any questions regarding your last will and testament , will or estate planning needs visit our law firm website www.quaylaw.co.nz for more information.

(As published in The South African — October/November 2010) Download the PDF

To talk to a conveyancing solicitor about your property transaction please contact  a lawyer at Quay Law.

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        Shared Homes Scheme – The Benefits

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        Shared Ownership – Things to Consider

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            Work and Income would also be contacted. All of the above takes time, so you need to allow sufficient time when renewing your work permit.

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            Consult a Professional Immigration Consultant for the Best Chance of Success

            We recommend that you do your homework and consult a professional immigration consultant or advisor to ensure that all your requirements pertaining to New Zealand Immigration are adequately addressed. Sometimes this can be as simple as ensuring that your application is completed using the correct application form, a mistake that can cause an unnecessary time delay. Mistakes or shortcuts in this NZ immigration process can have financial and emotional consequences.

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              Business and Investment Visas

              Looking into Business and Investment Visas for New Zealand?

              The objective of New Zealand’s business and investment visas, and overarching immigration policy is to help grow New Zealand’s economy by enabling experienced business people to establish or buy businesses in New Zealand, contributing to the country’s economic growth.

              The business migration category encompasses a number of immigration pathways – two visas for self-employed people or ‘entrepreneurs’, two for investors and one for employees of a relocating business.

              Navigate the Immigration Act 2009 with an Auckland Immigration Lawyer

              These visa categories aim to encourage self-employed entrepreneurs to come to New Zealand to operate or found a business that delivers significant benefits to New Zealand and its people. While doing so, they work toward meeting the criteria to be eligible to qualify for New Zealand residence.

              The person may either purchase an existing business or establish a new business in New Zealand. However, they will need to operate the business successfully for a specified period of time as well as meet a number of other very specific and detailed requirements during this time.

              For New Zealand’s business and investment visa categories, it’s important to get professional advice from an immigration lawyer experienced in these applications. The key to a successful application lies in having a proper business plan, including:

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              The investor visa categories enable people with significant funds to invest in a range of specific investment vehicles. The rules governing the sort of investment vehicles in which you may invest to meet the conditions of the investor visa category are detailed and complex. You will need to engage professional legal assistance to help you through this process.

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                Why is it important to update your will

                The importance of updating your will

                If you should die, having a valid will, also known as a “last will and testament”, is the only way to ensure that your assets and possessions are distributed to the people that you want them to go to, and in the way that you want them to be distributed to those people. However, the key word here is having a valid will. That’s because a legal will or parts of a will can be deemed to be invalid. Did you know that? Not many people do. So if you have a will (and making a legal will is something that everyone over the age of 18 should do) then you should definitely review it with your wills and trusts lawyer to ensure it’s still a valid will.

                Legal requirements to update your will

                Before 1 November 2007, when the Wills Act 2007 came into effect, documents that were intended to be a legal will but that failed to meet certain formal requirements, were deemed to be invalid as a will, often resulting in much-added heartaches, such as an intended beneficiary being deprived of an inheritance.

                A valid will had to be in writing, properly signed and be properly witnessed by two witnesses. Some of the things that can make a last will and testament, or parts of it, invalid, are things such as the following:

                • If the will was made before the will-maker got married or entered into a civil union, or ended their marriage by court order.

                • If it can be shown that the maker of the will was in any way subject to undue pressure or influence to dispose of their property in a certain way.

                • If the will-maker was not of sound mind or was under-age when they made the will.

                • If the will-maker made handwritten changes to an existing valid but neglected to sign or initial the changes and have them properly witnessed.

                • If a will was drafted by a lawyer but the will-maker died before they could sign the will.

                The Wills Act of 2007 and its impact

                Prior to 1 November 2007, documents that were intended to be a legal will but which failed to meet the various formal requirements of a valid will were deemed to be invalid.

                However, the Wills Act 2007 has made some important changes by allowing a Court of Law, in certain cases, to validate documents that record the testamentary intentions of the deceased as a valid will.

                The focus of these changes was to ensure that a will-maker who set out to express their genuine last will and testament, should not have those wishes frustrated merely by various legal technicalities. Now the Courts can validate certain documents, otherwise deemed as invalid previously, as valid wills. However, this does involve an application to the High Court under Section 14 of the Wills Act 2007 and still needs certain requirements to be met.

                Rather than have to go through a legal rigmarole involving the Counts, we recommend instead that you review your last will and testament every few years with your wills and trusts lawyer, just to be sure your will is still a valid will. Validating a will with the help of a lawyer should also be done when your circumstances change, for example, you get married or enter into a civil union or de facto relationship, or when relationships break up.

                Helping you validate your will

                It’s important to make sure you constantly stay on top of your estate planning by ensuring that your will and power of attorney are updated regularly.

                For expert advice as to whether your current will is still a valid will, or if you need to update or amend your will, simply call 09 523 2408 to speak with your Auckland lawyer at Quay Law. We’ll also provide you with a quote of the cost for amending your will, as there’s no fixed price for updating a will because each person’s circumstances are unique.

                Contact Your Conveyancing Lawyer in Auckland

                  New Zealand 2018 immigration changes

                  The latest immigration news is that Immigration New Zealand has increased the remuneration thresholds for Skilled Migrant visa and Essential Skills visa applications, with effect from 15 January 2018.

                  What’s behind the 2018 immigration changes?

                  We’ve all seen how, year on year, annual surveys show that New Zealand is one of the best countries in the world in which to live. So we’re not surprised it’s also one of the most popular immigration destinations in the world too. However, while New Zealand needs and welcomes skilled migrants from all over the world to fill existing skills gaps in its workforce, it also has to make sure that its own citizens are not disadvantaged when it comes to finding employment in their own country.

                  As a result, New Zealand immigration law, and its rules and regulations, change constantly to be able to get the right balance between ensuring high employment levels for New Zealanders while at the same time making it possible for skilled migrants to work in New Zealand and help promote the country’s continued economic growth.

                  2018 immigration changes to remuneration thresholds in visa categories

                  In a previous article we explained how, in August 2017, Immigration New Zealand was tightening immigration rules and points categories by, among other things, introducing remuneration or salary thresholds in the Skilled Migrant and Essential Skills visa categories, to help better manage migration levels.

                  From 15 January this year, Immigration New Zealand has increased those remuneration thresholds for the Skilled Migrant and Essential Skills visa categories.

                  Why revise the visa salary thresholds?

                  The remuneration thresholds introduced last year for the Skilled Migrant and Essential Skills visa categories are indexed against the New Zealand median income, which is updated annually. As mentioned earlier, New Zealand immigration law is also focused on making sure that New Zealanders seeking employment in their own country are not pushed to the back to the employment queue by lower-paid migrants.

                  In a nutshell, the minimum income threshold for a resident visa application under the Skilled Migrant immigration visa category has increased from NZ$48,860 to NZ$50,523; while the minimum income threshold for the temporary Essential Skill work visa category has increased from NZ$41,537 to NZ$42,952.

                  Here’s an overview of what’s changed in the remuneration thresholds for these visa categories

                  SKILLED MIGRANT IMMIGRATION VISA remuneration threshold for employment in a job at: Before 15 January 2018 From 15 January 2018
                  ANZSCO (Australian and New Zealand Standard Classification of Occupations) skill levels 1 to 3 $23.49 per hour or more (or equivalent annual salary) $24.29 per hour or more (or equivalent annual salary)
                  ANZSCO skill levels 4 and 5, or a level not included in ANZSCO $35.24 per hour or more (or equivalent annual salary) $36.44 per hour or more (or equivalent annual salary)
                  To earn bonus points $46.98 per hour or more (or equivalent annual salary) $48.58 per hour or more (or equivalent annual salary)
                  ESSENTIAL SKILLS WORK VISA remuneration threshold for employment in a job at: Before 15 January 2018 From 15 January 2018
                  ANZSCO (Australian and New Zealand Standard Classification of Occupations) skill levels 1 to 3 $19.97 per hour or more (or equivalent annual salary) $20.65 per hour or more (or equivalent annual salary)
                  ANZSCO skill levels 4 and 5, or a higher level not included in ANZSCO $35.24 per hour or more (or equivalent annual salary) $36.44 per hour or more (or equivalent annual salary)

                  How do these changes to visa salary thresholds affect current visas and visa applications?

                  The 2018 visa remuneration threshold changes will not affect visas that have already been granted, nor will they affect work visa applications or immigration or residence visa applications received by Immigration New Zealand before 15 January 2018.
                  However, any new work visa applications or renewal, or immigration or residence visa applications made on or after 15 January will be subject to the new remuneration thresholds.

                  For more information about the recent immigration changes, simply contact the friendly Auckland immigration lawyers and consultants at Auckland law firm Quay Law.

                  The key to successful New Zealand visa applications

                  New Zealand immigration law is complicated, and, as mentioned above, the rules change constantly in response to the changing needs of the country’s labour market. The key to a successful New Zealand immigration or work visa application is to apply for the right visa category, and then present your visa application properly to Immigration New Zealand.

                  This is where your Auckland immigration lawyer at Auckland law firm Quay Law can be a great help. Our immigration lawyers understand the finer details and rules of New Zealand immigration law and can give you the best possible immigration advice for your unique situation. So contact the immigration consultants at Quay Law today.

                  Contact Your Conveyancing Lawyer in Auckland

                    Buying a property? A property auction – how does it work?

                    A property auction is a way to sell or buy a property through a process of negotiation open to the public. The intention behind the process of publicly negotiating the price is to ensure the property is bought or sold at its true market value at the time of the auction.

                    Often, the reason for holding an auction is that the seller is not sure of the property’s market value. So, if there’s a chance there will be a fair bit of interest in the property, the seller may decide that holding an auction is a good way to get ‘the market’ to determine the value of the property. At the auction, the buyer is, in effect, ‘the market’.

                    If there are two or more people interested in it and they compete with one another for it, then the seller may even be able to get a better-than-market-value price for it.

                    Sometimes, however, even if the seller knows what their property is worth, they might simply want to get a quick, unconditional sale, and feel that an auction as the best way to make this happen.

                    Before the auction

                    A property for sale by auction is usually marketed, including open homes, for a number of weeks before the auction. The seller’s real estate agent will use this pre-auction period to get feedback from people who view the property about what they think it is worth. This information will be used to help the seller set a realistic reserve price for the property at the auction. The reserve price is the lowest price the seller is willing to accept for the property. Usually, only the seller and their estate agent and the auctioneer will know what the reserve price is.

                    Sometimes, the seller may be willing to take offers before the auction. This will be made clear in the marketing information about the property. If you’re interested in the property, make sure you register your interest with the property’s real estate agent. That way, if they do get any pre-auction offers, they will also give you a chance to make an offer.

                    Pre-auction offers

                    If you do want to make an offer before an auction is held, it will have to be an unconditional offer and be accompanied by a deposit, usually 10% of the full offer price. The deposit must be paid into the trust account of the seller’s lawyer. If the offer is successful, the lawyer will hold it ‘in trust’ until the property is transferred to the buyer, at which point it will become part of the settlement amount. If the offer is not successful, the deposit will be refunded in full.

                    If the seller is interested in your pre-auction offer, their real estate agent will contact all other potential buyers or people who have previously indicated they want to attend the auction to bid on the property, to tell them someone has made an offer on the property. If these people are also interested in making an offer, then the seller has two options:

                    • The seller could arrange for the auction to be brought forward. The highest pre-auction offer received will then become the reserve price for the auction. The person who then makes the highest bid will win the auction.
                    • The seller could decide they are willing to accept the highest pre-auction offer. Their agent will then begin a process of calling all the potential buyers who want to make an offer until they receive the highest unconditional cash offer.

                    An unconditional purchase

                    When you buy at a property auction you are buying unconditionally. If you are the highest bidder, and you’ve met the reserve price, then you have, in effect, made a cash offer. Once your bid is accepted and the auctioneer’s hammer has fallen, the sale is unconditional and is legally binding. You cannot attach conditions to an auction purchase, so you need to get all your ‘ducks in a row’ before the auction.

                    Do your homework beforehand

                    Buying a property at auction is an unconditional purchase which means that, when the auctioneer’s hammer falls, you have bought the property as it is. Therefore, you need to do all your research on the property before the auction.

                    Here are 5 essential things you need to work through together with your local conveyancing lawyer to get sorted before the auction.

                    1. Arrange your finance: To bid at a property auction you need to have sorted your finance. Merely being ‘pre-approved’ for a loan is not sufficient, as this only means you are eligible for a loan. Your bank will still need to approve lending you the money for that specific property, so will probably require a property valuation for the property. As soon as the hammer falls at the property auction, you will have to hand over the required deposit (usually by cheque) and pay the balance of the purchase price on the settlement date, when you take possession of the property. So, you have to have your finance completely sorted before the property auction starts.
                    2. Check the property title: Before the property auction, get your lawyer to check the property title to ensure there are no problems with the title. Ask your lawyer to carefully explain all aspects of the title to you.
                    3. Check the ‘Particulars and Conditions of Auction’: Usually a set of Particulars and Conditions of Auction for the particular property will be made available to you prior to the property auction by the seller’s estate agent. Make sure you go through these carefully with your lawyer before the auction to ensure you understand everything, especially any conditions that might apply to the property.
                    4. Get a builders report: Always get a building inspector to thoroughly check the property and provide you with a written report on it before the property auction. If you’re the successful bidder at the property auction, you cannot decide after the auction that you don’t like something about the property.
                    5. Get an LIM report: Make sure you get an LIM or Land Information Management report before the property auction as this contains the local council’s records on the property.

                    Bidding at the property auction

                    Property auctions can be quite nerve-wracking and fast-moving events. Ask the estate agent who is marketing the property to explain the auction process to you. Even better, if you haven’t been to a property auction before, go to one to see how it works so you know what to expect.

                    If you want to bid on a house at a property auction you will need to register with the auctioneer. However, you do not have to be at the property auction in person if you can’t or don’t want to be there or you feel nervous about the whole process. You can arrange to bid over the phone or get someone else to bid on your behalf.

                    At the property auction, the auctioneer will usually explain the auction process and summarize the ‘Particulars and Conditions of Auction’. Then they will start the bidding by asking for an opening bid. To place your bid, you simply let the auctioneer know by raising your hand or catching their eye and nodding or calling out your bid.

                    When the bidding reaches the reserve price, the auctioneer will announce that the property is “on the market”, which means that, from that point, the property will sell to the highest bidder. Once the highest bidder is found, that person becomes the buyer and must sign the purchase contract and pay the deposit, usually 10%.

                    Vendor bids

                    Sometimes, the auctioneer or someone else working on behalf of the seller may make a bid on behalf of the seller. This is called ‘vendor bidding’ and may be used by the auctioneer to kick-off the bidding or move the bidding closer to the reserve price. The Particulars and Conditions of Auction will state whether vendor bids will be used at the property auction.

                    Vendor bidding is only allowed if the property being auctioned has a reserve price, the reserve price has not been met and the auctioneer clearly states that the bid being made is “a vendor bid”.

                    Stick to your budget

                    By the time you’re at the property auction and in the bidding process, you’ve probably already spent a fair bit of time and money on the property, paying for building and LIM reports, and all the other before-the-auction homework.

                    Don’t let this financial, and associated emotional investment, or your competitive spirit, affect your bidding in the heat of the auction. Decide beforehand what the absolute maximum price is that you are willing or can afford to pay for the property, and stick to it. There is no point in taking on something that you cannot afford.

                    Get sound legal advice

                    Buying a property is one of the biggest, if not the biggest, financial transaction you’ll ever make. Never sign any property contract without first getting professional legal advice about what you are committing yourself to. Buying property is not something to be taken lightly, and this is especially true when you plan to buy at a property auction because there’s no going back once the hammer falls. Get in touch with your local Auckland law firm and work closely with your conveyancing & property lawyer at Quay Law to make sure you have all your ducks in a row before you head into the property auction.

                    Contact Your Conveyancing Lawyer in Auckland

                    We are lawyers in Auckland, who provide practical legal services and conveyancing to a diverse range of New Zealand and overseas client needs. Centrally located in Remuera, Auckland, we look forward to working with you.

                    Contact your approachable auckland lawyer

                    Our Legal Services

                    Our Auckland lawyers provide practical legal services for a diverse range of client needs.

                    CONVEYANCING (RESIDENTIAL AND COMMERCIAL)

                    Our property lawyers understand that property refinancing and property transfer or conveyancing transactions are diverse and can range from the sale or purchase of a residential house or apartment to something more complex. Transactions may focus on any property market be it retail, office, industrial, retirement villages, residential or rural.

                    Call us now for our conveyancing

                    REFINANCE, DEBT RESTRUCTURING OR CONSOLIDATION

                    Loan Refinancing may refer to the replacement of an existing debt obligation with a debt obligation under different terms.

                    If the replacement of debt occurs under financial distress, refinancing might be referred to as debt restructuring or debt consolidation.

                    Call us now for our Refinance

                    WILLS AND ESTATE ADMINISTRATION

                    Everyone over the age of 18 years should have a will.  This will ensure that your assets will be bequeathed to those persons or entities whom you wish to benefit from your estate. We are able to manage the administration of your assets on death and provide advice to estate executors on any legalities that may arise.

                    We also provide the following ancillary services

                    • Enduring Powers of Attorney
                    • Powers of Attorney and Deed of Delegation
                    • Matrimonial and De Facto Claims against your estate

                    Call us now for wills and estate administration

                    ESTATE PLANNING, TRUSTS AND ASSET PROTECTION

                    We specialize in the establishment of the Trust and thereafter are able to support the ongoing management of your Trust along with your Trustees.  It is essential that your most important assets are protected during your lifetime and on your death.

                     Please contact us for family trusts

                    TAXATION

                    Types of taxation related services include but are not limited to

                    • Investment Properties
                    • Income structuring
                    • Income Splitting for Family
                    • Pre immigration planning.

                    Please contact us for Tax Lawyers

                    RELATIONSHIP PROPERTY

                    The drafting of a relationship property agreement requires skill, diplomacy and a good understanding of your requirements to ensure that the desired outcomes are achieved should a separation occur. We are able to assist with setting up Relationship Property Agreements and Separation Agreements.

                     Please contact us for Relationship Property Agreement
                    COMMERCIAL | BUSINESS LAW

                    Types of products and services we provide:

                    • Leasing
                    • Business Sales and Purchases
                    • Business Refinancing
                    • Company Formation
                    • General Security Agreements
                    • Debt Collection
                    • Partnerships
                    • Shareholders Agreements
                    • Small Business Advice
                    • Business and Marketing Plans
                    • Strategic and Marketing Advice
                    • Guarantees
                    • Terms of trade
                    • Financing
                    • Franchising
                    • Joint Ventures
                    • Consumer protection

                    Please contact us for Commercial lawyers

                    FRANCHISING

                    Whether you are a franchisee or franchiser, large and small, we are able to assist you in setting up franchises, entering/buying a franchise, writing and reviewing franchise documentation and expanding franchises, in a personalised, professional and efficient manner.

                    Please contact us for Franchise agreements

                    IMMIGRATION

                    Our lawyers in Auckland can assist you with:

                    • Providing general immigration advice.
                    • Attending to you visitor, work or residency visa / permit applications.

                    Please contact us for NZ Immigration

                     We can help you with:Rules of the Body Corporate
                    Management of the Common Property
                    Establishment of the Board of Trustees (the committee)
                    Regulations governing the Board of Trustees
                    Provide insight and objective advice on Body Corporate matters
                    Please contact us for Auckland Body Corporate Lawyer
                    SOCIAL MEDIA LAW

                    Social media includes web-based and mobile technologies used to turn communication into interactive dialogue. Social media is media for social interaction as a super-set beyond social communication. Enabled by ubiquitously accessible and scalable communication techniques, social media has substantially changed the way organizations, communities, and individuals communicate. This has in turn had an impact on the law.

                    Please contact us at Quey Law Remeuera for  Social Media Law

                    CONVEYANCING, FAMILY TRUSTS AND GENERAL ADVICE

                    Our lawyers based in Remuera are also able to provide advice on general New Zealand legal matters.

                    If you require expertise beyond our practice, we are able to arrange this necessary expertise for you.

                    Referrals to Barristers are also provided.

                    Our Auckland solicitors also practice in Social Media Law.

                    For more information, please contact a lawyer at Quay Law Barrister and Solicitors.

                    Please contact us for General legal requirements

                    “If you don’t build your dream, someone will hire you to help build theirs”
                    – Tony Gaskins
                    Anonymous • Quote of the Day
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