Table of Contents

Table of Contents

Table of Contents. 1

About this Guide. 4

Purpose. 4

Accuracy and Disclaimer. 4

Acknowledgements. 4

Sources. 4

Currency. 5

Intestacy. 6

General Rules. 6

Partial Intestacy. 7

Intestacy Involving Māori Freehold Land (MFL) 8

Wills. 10

Overview.. 10

What is a will?. 10

Who can make a will?. 10

Writing a will 11

Why should I write a will?. 11

How can I write one?. 11

Who can help me decide what I should do in my will?. 12

What sorts of things should/must my will contain?. 13

Procedural steps. 20

Reviewing and Proofreading Your Will 20

Execution. 21

Additional procedural steps. 23

Keeping your will 23

Changing your will and unintentionally cancelling your will 24

How to best cancel your will: change it 24

Other ways of cancelling your will 24

Unintentionally cancelling your will 24

The life cycle of making wills. 24

Māori Wills. 26

Ōhākī 26

Māori Freehold Land (MFL) 26

Gifting ownership of MFL. 26

Occupation and income rights associated with interests in MFL. 26

Intestacy. 26

Additional information. 27

Remains. 28

Information for will-maker. 28

Information for personal representative. 28

Information for whānau and interested persons. 28

Enduring Powers of Attorney (EPA). 29

What is an EPA?. 29

The Alternative: PPPR Orders. 30

Making an EPA.. 30

Should I make an EPA?. 30

Can I make an EPA?. 31

What should I think about before and while preparing my EPA?. 31

How can I make an EPA?. 32

Keeping my EPA. 34

Advanced Care Plan. 34

What if I have property located overseas?. 34

Changing, suspending and cancelling an EPA. 35

Further Information. 36

Information for Next of Kin. 36

Information for Attorneys. 37

Becoming an Attorney. 37

Activating your Role. 37

Information for Property Attorneys. 38

Information for C&W Attorneys. 38

Proof of Authority. 39

Stopping Being an Attorney. 39

Summary of Forms Available in this Part 40

Administration.. 40

Overview.. 40

Small Estates: Dealing With the Estate Without Court Process. 41

Government Stock. 41

Company Shares and Debentures. 42

Money. 42

Life Insurance Money. 43

Other Assets. 44

Determining Which Grant Application to Make. 44

A Search for a will 45

B Did the deceased leave a will?. 46

C Does the will appoint an executor?. 46

D Is the executor capable of applying for probate?. 46

E Will the executor apply for probate?. 46

Types of Grant Application. 47

1 Probate. 47

2 Letters of administration with will annexed. 48

3 Letters of administration on intestacy. 49

Purpose of the High Court forms. 50

Completing Documents for the High Court 51

Completing the Administration. 54

Overview. 54

Handle the Deceased’s Remains. 55

Call in all Assets and Care for them.. 55

Pay the Expenses of Administration. 55

Pay Debts. 55

Distribute the Property to the Beneficiaries (as trustee) 55

Information for Beneficiaries. 56

Accessing the will 57

Concerns. 57

About this Guide

Purpose

The purpose of this Guide is to provide information about various areas of the law that are relevant to all people at all times. These areas of the law are:

• Wills and Succession: these are the areas of the law that govern decisions about how someone can distribute their property upon death. This is always important to us because our preferences for how we give out property upon death may change throughout our lifetime. One must make sure their wishes are reflected in an up-to-date will.
• Probate and Administration: this topic is covered because it is closely related to Wills and Succession. These are the areas of the law that govern the process of following the will-maker’s will once they have passed. If there is no will, they govern the process of following the default rules.
• Enduring Powers of Attorney (EPAs): EPAs are documents that someone can make now (while mentally capable) that usually activate later (when they become mentally incapable). An EPA appoints another, an “attorney”, to make decisions on the EPA-maker’s behalf when the EPA is activated. EPAs are important to everyone because they may activate in situations foreseen (such as the progression of a disease) or unforeseen (such as a car accident).

Accuracy and Disclaimer

The content of the Guide is made available as a public service for information purposes only. Every effort is made to ensure the content is accurate but no warranty is made as to the accuracy, currency or completeness of its content at any time. The law is complex and constantly changing. Do not rely on this Guide as a substitute for legal advice. Seek expert advice if you have a specific problem. No responsibility is accepted for any loss, damage or injury, financial or otherwise, suffered by any person acting upon or relying on information contained in it or omitted from it.

Acknowledgements

The Guide was created by NZLII with assistance from law students and members of the legal profession.

Ronan Comeskey wrote the Guide.

Sources

Apart from those secondary sources specifically linked in this Guide, the following secondary sources were generally used:

• Lindsay Breach Nevill’s Law of Trusts, Wills and Administration (14th ed, LexisNexis, Wellington, 2023);
• John Earles and others Dobbie’s Probate and Administration Practice (6th ed, LexisNexis, Wellington, 2014);
• Community Law <communitylaw.org.nz>;
• Citizen’s Advice Bureau <cab.org.nz>;
• New Zealand Law Society – Te Kāhui Ture o Aoteatoa <lawsociety.org.nz>;
• Ministry of Justice – Te Tāhū o te Ture <justice.govt.nz>; and
• Te Aka Matua o te Ture – Law Commission <lawcom.govt.nz>.

Further information may be found here.

The following primary sources were consulted:

• High Court Rules 2016 (HCR or “the Rules”);
• Administration Act 1969;
• Wills Act 2007;
• Family Protection Act 1955 (FPA);
• Law Reform (Testamentary Promises) Act 1949 (LRTPA or TPA);
• Property (Relationships) Act 1976 (PRA);
• Care of Children Act 2004;
• Te Ture Whenua Maori Act 1993; and
• Protection of Personal and Property Rights Act 1988 (PPPRA).

Other, less significant (often secondary) legislation was reviewed. Users may navigate to relevant rules and regulations associated with the above Acts from the Act on New Zealand Legislation <legislation.govt.nz> by selecting the “Secondary legislation” tab.

Currency

This Guide was completed in December 2024.

Te Aka Matua o te Ture finalised reports reviewing these areas of the law (including reports on succession law and relationship property). Moreover, it is currently reviewing Enduring Powers of Attorney and related areas of the law. The government may change these areas of the law by adopting Te Aka Matua o Ture’s recommendations. This Guide may, therefore, be inaccurate in certain respects. Always obtain proper and current legal advice.

Intestacy

This Part of the Guide summarises the default distribution rules that apply when the deceased dies “intestate”—without a (valid) will. We call such a person “the intestate”. These rules may also apply if there is a “partial intestacy”—where property is left over after the instructions within the will are carried out.

General Rules

The entitlements are as follows (Administration Act 1969, section 77 and Administration (Prescribed Amounts) Regulations 2009, regulation 5):

Circumstances (those left by the intestate)	Distribution
(1) Partner*, no issue** and no parents	Everything to the partner.
(2) Partner* and issue**	The estate is distributed under these steps: (i) Partner gets all personal goods; (ii) Partner gets $155 000; (iii) Partner gets 1/3 of what is left, if anything; and
	(iv) Issue gets 2/3 of what is left (equally), if anything. It is possible that the partner gets less than $155 000 under step (ii). In this case the partner gets everything, because there is not enough to move on to steps (iii) and (iv).
(3) Partner*, parents(s) and no issue**	The estate is distributed under these steps: (i) Partner gets all personal goods; (ii) Partner gets $155 000; (iii) Partner gets 2/3 of what is left, if anything; and
	(iv) Parent(s) get 1/3 of what is left (equally), if anything. It is possible that the partner gets less than $155 000 under step (ii) in which case the partner gets, in practice, everything.
(4) Issue** and no partner	Everything to issue (equally).
(5) Parent(s), no partner* and no issue**	Everything to parent(s) (equally).
(6) Full or half sibling, no partner*, no issue** and no parents	Everything to siblings (equally).
(7) None of the above but (a) maternal grandparents, aunts or uncles or (b) paternal grandparents, aunts or uncles	(a) Half to the maternal side under these steps: (i) All to grandparent(s) (equally); else (ii) All to aunt(s) and uncle(s) (equally); else (iii) All to paternal side; and
	(b) Half to the paternal side under these steps: (i) All to grandparent(s) (equally); else (ii) All to aunt(s) and uncle(s) (equally); else (iii) All to maternal side.
(8) None of the above	All to the Crown.

* Partner means spouse, civil union partner or surviving de facto partner.

** Issue means all of one’s lineal descendants, being their children, grandchildren, etc.

A helpful flow chart is available at page 189 of te Aka Matua o te Ture’s report on Succession Law:

These rules are outdated and probably do not reflect your wishes. You best write a will*** to avoid these undesirable outcomes.

Example 1. The intestate, A, died leaving their spouse, B, and three children, X, Y and Z. Their estate is worth $100 000 (excluding personal goods).

Solution. Given A left their partner and children, rule (2) in the table above*** applies. Following the steps, (i) B gets all personal goods, and then (ii) B gets $100 000. There is nothing left. Overall, B gets everything, and X, Y and Z get nothing.

Example 2. The intestate, A, died leaving their spouse, B, and three children, X, Y and Z. Their estate is worth $245 000 (excluding personal goods).

Solution. Given A left their partner and children, rule (2) in the table above*** applies. Following the steps, (i) B gets all personal goods, and then (ii) B gets $155 000. There is $90 000 left. Of what is left, (iii) B gets a third ($30 000) and (iv) the children share equally in two-thirds ($60 000). Overall, then, B gets $185 000 and each of the three children gets $20 000.

Partial Intestacy

The general rules, above, apply also to partial intestacies (Administration Act 1969, section 79). A “partial intestacy” arises when the will-maker’s will distributes some of the will-maker’s property, but there is “leftovers” that the will does not address (see Residue***).

If the will-maker left a partner, then the leftovers are first used to top up the partner to the $155 000 amount if the partner has not yet received that amount under the will. The rest of the leftovers are distributed in the proportions in the table above.***

If the will-maker did not leave a partner, then the leftovers are distributed as in the table above.***

Example 1. The will-maker made a will gifting $100 000 to their partner, A. The will-maker also has a child, B. The will did not make any other gifts. The will-maker died with $185 000.

Solution. The partner, A, gets the $100 000 under the will. For the partial intestacy, row (2) of the table*** applies. Of the $85 000 leftovers, A gets $55 000 to top them up to $155 000. Of the now $30 000 leftovers, A gets a third, $10 000, and B gets two-thirds, $20 000. Overall, A gets $165 000, and B gets $20 000.

Example 2. The will-maker made a will gifting $100 000 to their partner, A. The will-maker also has a child, B. The will did not make any other gifts. The will-maker died with $120 000.

Solution. The partner, A, gets the $100 000 under the will. For the partial intestacy, row (2) of the table*** applies. Of the $20 000 leftovers, A gets all of it to top them up to $120 000. B gets nothing.

Intestacy Involving Māori Freehold Land (MFL)

The ordinary intestacy rules,*** above, apply to property that is not MFL.

If you die without disposing of your interest in MFL, then it goes to the following (TTWMA, section 109):

Circumstances (those left by the intestate)	Distribution
(a) Intestate leaves children (or their descendants).	The children of the deceased share equally.
	If a child (A) has died before the intestate (B), A’s living children (B’s living grandchildren) share A’s portion equally.
(b) Intestate leaves no children but has brothers and sisters (or their descendants).	The brothers and sisters share equally.
	If a brother or sister (A) has before the intestate (B), A’s living children (B’s living nieces and nephews) share the A’s portion equally. This includes half-siblings related through the side of the family where the land came from.
(c) Intestate leaves no children or siblings (or their descendants).	The nearest ancestor with living descendants is identified, and their descendants share equally.

In the bigger picture, TTWMA ensures that your interest in MFL goes down all of the closest branches of your family tree by default.

Your partner automatically gets the occupation right and the rights to income/grants for their lifetime*** (TTWMA, section 109AA).

Wills

Overview

By making a will, you get to express your intentions as to how your property is distributed upon death. Provided your will reflects your intentions and complies with certain requirements, then those responsible for distributing your property upon your death will follow your will instead of the default rules for distribution. In this Part of the Guide, we discuss:

• What a will is;
• Writing a will;
• Putting a will into effect;
• Keeping a will; and
• Changing/cancelling a will.

The will life cycle*** at the end of this Part summarises the process of updating your will throughout your lifetime.

If you make a mistake, your will might be invalid or partially invalid. If this is the case, your estate might be distributed according to the intestacy rules*** or the partial intestacy rules.*** It is critical, then, that you fully understand the will-making process or else, that you get expert advice on how to make a will.

What is a will?

A will is a document that gives instructions to your next of kin for how your property must be distributed upon your death or appoints a testamentary guardian for your children. (Wills Act 2007, section 8.) A will may do either or both of these things. However, most wills always deal with your property and sometimes appoint a testamentary guardian.

A will becomes a public record*** when your personal representative files for a grant of administration at the High Court. You may accompany your will with a statement of wishes (regarding your funeral, remains, an explanation of your wishes, etc) which does not become part of the public record.

Who can make a will?

You must be 18 years old or over to make a will (Wills Act 2007, section 9(1)). Exceptionally, younger people may make a will (see the Wills Act 2007, sections 9(2)–(4) and 10).

Moreover, you must have “testamentary capacity” to make a will. This means that you must be—

• able to understand the nature of making a will and the effects of it;
• able to understand the amount of property that your will deals with; and
• able to acknowledge who the people are that you should provide for.

Importantly, the “capacity” is all about your ability to understand matters relating to your will. This does not include physical capabilities or mental capabilities that are unrelated to your ability to make a will.

Writing a will

Why should I write a will?

A will allows you to put into effect how you want to distribute your property upon your death. The default rules of distribution (the “intestacy rules”***) often do not do a good job of this. For example, the intestacy rules do not account for the sentimental value of your possessions or the importance you place on your loved ones.

Some report being apathetic towards writing a will because they feel that there is no one they can leave their property to. However, you can also leave your property to non-family members. You might wish to leave property to some of the following, for example:

• (1) Friends;
• (2) Charities you feel strongly about;
• (3) Not-for-profit organisations; or
• (4) An institution to establish a scholarship.

However, if you do have close family members, you should provide for them in your will. Otherwise, you risk having that family member challenging your will under the Family Protection Act 1955.***

Secondly, you may express your wishes surrounding your remains*** in your will.

Finally, a will allows you to specify care arrangements for your children.

How can I write one?

It is not enough to verbally communicate your wishes to someone. You must record your wishes in writing (Wills Act 2007, section 11(1)) in order to have a valid will. There are various outlets for you to be able to do so.

Lawyer

The best option for writing a will, especially if you would like some of your property to be held on trust after your passing, is to contact a lawyer. You may arrange to meet at the lawyer’s office or for them to meet you in a more convenient location. Your lawyer must prepare your will promptly.

If writing your will is an urgent matter, you should make this clear to your lawyer. You should follow up before the end of the day. Else, you should follow up if you have not heard back from your lawyer after a couple of days.

If you are unhappy with your lawyer’s services, you may follow the Law Society’s complaints process.

Trustee company

A trustee company, such as the Public Trust, may help you write a will. Like lawyers, these companies should prepare your will promptly.

Do it yourself (DIY)

There are various DIY options for writing a will.

You may refer to this example will.***[Link to NZLII Will Template docx file] This example is only intended to give you an idea of the structure of a will. You should not substitute it for proper advice.

CAB recommends these online options:

Outlet	Price range ($) (as at Nov 2024)
Public Trust	Basic will (online): 85 Standard will (online): 164 (274 mirror) Comprehensive will (online): 219 (373 mirror)
Lawhawk	Online will: 99
Footprint	Single will: 100 Subscription options at 85 and 120 per year
Safewill	Essentials will: 160 (240 for two people) Unlimited updates: 15 per year

You may also purchase DIY will kits at bookstores or simply do it yourself with the materials you already have (computer, paper, printer, pens). These options provide the least security.

Although amateur writing is acceptable, it is more prone resulting in errors and misinterpretations than the other methods suggested here. Mistakes are best avoided to ensure that your will is valid, properly expresses your wishes and can be smoothly proven before the High Court*** by your executors.*** This is why it is recommended that you get a lawyer to put your will into words for you.

If you desire complex arrangements, you should consult a lawyer.

Who can help me decide what I should do in my will?

Your will is just that—your will. You must make decisions about your will independently. So, there are limits on how much outside help you can get in deciding what to do with your property.

Family

Whilst you may sometimes consult your family members and those you trust to make your will, you must set very clear boundaries so that the wishes you express are yours and appear to be yours. A court may invalidate your will if it believes that the wishes you expressed were not genuinely yours.

It is always best to make decisions about your own property by yourself, or decisions about relationship property with your partner, with independent advice.

Independent advisors

You may seek independent advice about making your will (such as a lawyer or estate planner). Although they might use their own words to write your will, they must use the words that best express your wishes.

An independent advisor helping you with your will should not ask you for any gift in your will, but they may charge a fee.

What sorts of things should/must my will contain?

Best practice

It is best practice that you seek legal advice in preparing the contents of your will. The following may guide you as to the sorts of things you might want to think about before obtaining proper legal advice. A lawyer will ask all of the right questions to make sure you know the complete picture before committing your wishes to writing.

Revocation clause and date

Your will should always contain a “revocation clause” that cancels (revokes) any will you have previously executed (signed), even if you have not written a will before. It might be written like the following: “I entirely revoke any will I have previously executed”.

Making a new will without a revocation clause does not necessarily cancel a previous one, and you risk making it challenging for your executor if they have to work out how to use multiple documents.

To clarify which will is your final one, you must also date your will. Do this by providing for space next to where you sign your will. You can then write, in pen, the date when you sign. (See execution.)***

Appoint executors

An executor is someone that you name in your will who will deal with your affairs (your bills, funeral expenses, etc) after your death before putting your wishes in your will into effect. It is best practice to specify that your executor is also your “trustee” under your will.

It is important you choose an executor (or executors) in your will. Ideally, you should seek prior consent from your executor(s) beforehand to ensure they are comfortable with the role. Moreover, you should tell them where they may find the original copy of your will. This will ensure that your will is carried out as smoothly as possible.

Once the estate is administered***, your executor (as trustee) will hold any remaining property “on trust***” for the beneficiaries.

You should nominate a person or persons by their full legal name and further identify them. For example:

• “I appoint Jane Doe, my daughter, and John Mon Roe, my accountant of Firm XYZ, to be my executors and trustees of my will”; or
• “I appoint Jane Doe, my daughter, to be my executor and trustee of my will. If she is for some reason unable to act as such, then I appoint John Doe, my son, to be my executor and trustee of my will.”

Your executor must act unbiasedly. Nothing stops you from appointing beneficiaries to the role of executor. However, beneficiaries may be more likely to be biased executors. You should carefully consider your family’s dynamic before appointing family members or other beneficiaries to this role.

You may appoint anyone to be your executor at the time you write your will, but there are reasons why your choice might not be effective at or after the time of your death.***

Marital status

A change in marital status (or civil union status) usually changes the validity of your will. You should prepare your will with this in mind.

If you are unmarried (and not in a civil union), the general rule is that entering a marriage (or civil union) revokes***your will in its entirety. You may override this general rule by writing in your will that you are making your will in contemplation of a specific marriage (or civil union), provided that the marriage (or civil union) that you contemplate is the one that you enter. (Wills Act 2007, section 18). Importantly, you cannot prepare a will contemplating the possibility of being married to someone unspecific.

If you are married (or in a civil union), the general rule is that, upon your marriage ending (including upon formal separation), your will remains valid except for the parts that provide for your ex-partner. Other clauses in your will about your partner—nominating them as an executor, for example—are also affected. You may override this general rule by specifying that you intend for this to not be the case. (Wills Act 2007, section 19). If you wish to do so, you must take care to say that you intend for the relevant clauses in your will to remain valid “notwithstanding an order within section 19(2) of the Wills Act 2007 being in force” and that those clauses are “not to be read as if [my partner] died immediately before me”.

Residue

Ensure your will gifts the “residue” of your estate. The “residue” is all that is left once the estate is administered. If your will does not gift the residue, then the default intestacy rules apply to anything that is left over once all of your more specific gifts have been made. This is known as a partial intestacy***.

Predeceasing clauses

You should make it clear what should happen to a gift if it fails because someone predeceases (dies before) you. By default,—

• If the gift was a fraction of your whole estate or the residue***, then the part is shared by the other people who get a fraction (Wills Act, section 28);
• Else, the gift forms part of the residue (Wills Act, section 29).

You can change the default rules in your will. For example, you can say that if someone’s gift fails, then it goes to their children in equal parts.

Example 1. In the following example, the deceased left their entire estate to A (50%), B (25%) and C (25%). They did not say anything about what should happen if any of the beneficiaries die before them (so the default rules apply should A, B or C die before the deceased).

Scenario 1: all beneficiaries alive	Scenario 2: B died before the deceased
A, B and C are all alive when the deceased died. All receive their gift as outlined in the will: 50%, 25% and 25% respectively.	Only A and C are alive when the deceased died. B’s gift splits 2:1 between A and C because A was to be left twice as much (initially 50%) as C (initially 25%). So, A gets 67% and C gets 33%.

Example 2. The deceased left their house to their spouse, A, and everything else to their nephew, B. They did not say anything about what should happen if any of the beneficiaries die before them. If A and B are both alive upon the deceased’s death, then they receive what is written in the will (but see “Partner”*** below). If A dies before the deceased, then B gets everything, including the house.

Example 3. The deceased left 3/4 of their estate to his children, A1 and B1, in equal parts and 1/4 to all of his grandchildren, A2 (child of A1) and B2 (child of B1), in equal parts. He said that a child’s failed gift should go to their child’s children (equally).

Scenario 1: all beneficiaries alive	Scenario 2: B1 died before the deceased
A1, B1, A2 and B2 are all alive at the time of the deceased’s death. They all get their gifts as outlined in the will.	B1 has died before the deceased but the other beneficiaries are still alive. Per the will, B2 gets their share plus their parent’s share. This ends up being half of the total estate.

Partner

Upon your death, your partner has a choice under section 61 of the Property (Relationships) Act 1976 (the PRA). This is subject to any agreement that says otherwise (section 21(2)(b)).

They may choose “Option A” which is to distribute property under the PRA. Roughly speaking, this involves pooling all relationship property—that of your estate and of your partner—and then splitting the pool 50/50 between your estate and partner.

Alternatively, they may choose “Option B” which is to reject Option A and receive property according to your will or any applicable intestacy rules.

You should keep this in mind when making your will.

Debt forgiveness

In your will, you may choose to forgive others for money they owe you. Sometimes, people choose to forgive any debts owed by (a class of) family members. Doing this may help your executors, because they will not need to chase up potentially small amounts. However, doing so may change the family dynamic, because you might feel unable to give large loans to family members later in your life.

You may only gift property forming part of your estate

You must be sure of the property that you own and that you are able to dispose of upon your death. Your executors can only distribute the property that you owned.

This affects how you can gift co-owned property. There are two usual methods of co-ownership:

• Joint ownership: You are not able to specifically gift property in your will that you own “jointly” with another (most commonly, joint ownership of a home). When a “joint” owner dies, their ownership in the property “vanishes” and it is absorbed by the remaining joint owners. Because the deceased’s interest vanishes, it does not form part of their estate.
• Tenants in common ownership: You can, however, specifically gift a share that you have in co-owned property if you own that property “in common” (for example, shares in a company or common shares in a house).

You should seek advice before writing your will if you are unsure of which co-ownership method you use for you co-owned property.

If your life is insured under a life insurance policy, you will also want to check who the “Policy Owner” is. If you are the Policy Owner, then money will be paid to your estate on your death. In this case, you can choose how to distribute it, either specifically or as a part of the residue***. If someone else is the Policy Owner (such as your partner), then the payout is theirs. In this case, the payout will not form part of your will.

Examples. Consider the following examples. In these examples, A and B co-own a house. A has left everything to C in their will. A then dies.

Co-ownership method	Before A’s death	After A’s death
Joint ownership	A and B own a house jointly.	B owns the house outright, and C does not own the house.
Common ownership (50/50)	A and B own a house as tenants in common, both owning a half share.	B still owns their half share, and C owns a half share.

Specific gifts and “ademption”

A specific gift is a gift of a specific piece of property. Usually, a will-maker uses specific gifts to give family heirlooms or other sentimental items away. For example, you might say that “I gift my diamond necklace to my child, Jane Doe”.

Your will deals with your property according to the “circumstances as they are when [you] die” (Wills Act 2007, section 20). If you make a specific gift of property that you own now, it may fail if you no longer own property meeting the description in your will at the time of your death. We say that such gifts are “adeemed”.

Examples. Consider the following examples:

Gift	Circumstances at death	Outcome
“My Toyota to my son”	You do not own, and you have never owned, a Toyota.	Gift fails.
“My Toyota to my son”	You did own a Toyota, but you now own a Honda.	Gift likely fails.
“My car to my son”	You did own a Toyota, but you now own a Honda. You have only ever owned one car.	Your son gets the Honda.
“My Toyota or its proceeds to my son.”	You owned a Toyota and a Hyundai. Before your death, you traded your Toyota for a Honda and kept the Hyundai.	Your son gets the Honda.
“A Toyota [model] to my son.”	You never owned a Toyota.	Your son gets a Toyota, provided there is enough in the estate to purchase a Toyota, because this is not a specific gift.

As the examples show, you may avoid the outcome of the gift failing in this way by making the specific description more general (as in the difference between “Toyota” and “car”) and/or referring to the proceeds of the property described. In describing the property, you should consider the sentimental value of the property and the purpose of gifting it.

Distribution process

Your executor’s first task in distributing your estate is to pay your debts after they have collected together all of your property. Generally, “general gifts” (in particular, the residue) are the first to be used to pay your outstanding debts. Specific gifts are the last to be used to pay your debts.

Possible claims

There are various avenues for people to claim against your estate. Even though your will expresses your wishes about your property, these claims may, in effect, change your wishes. It is best practice to prepare your will with possible claims in mind and try to avoid them so that your will is carried out smoothly after your death.

You should keep in mind the possibility of a claim under section 4(1) of the Family Protection Act 1955 (FPA). This allows family members to make claims against your estate if you have provided inadequately for their “proper maintenance and support”. “Support” means to sustain or provide comfort. Claims like these often arise in circumstances where the will-maker has specified that their children be left a massive difference under their will—for example, 99% to 1%. They also often arise when a child is “disinherited”. You should seek legal advice if you think your preferences might give rise to an FPA claim. (Note that way this works is under review.)

You should also keep in mind any promises you have made to others about exchanging their services for provision in your (final) will. If you fail to keep these promises in your will, the person promised might have a claim against your estate under section 3(1) of the Law Reform (Testamentary Promises) Act 1949.

The Property (Relationships) Act 1976 (the PRA) can also interfere with your wishes. As above, your partner may be able to choose to inherit under your will or share relationship property under the PRA.*** Exceptionally, a will-maker’s executors may try to get the property distributed under the PRA, especially in cases where the will-maker left all their property to the partner and nothing to their children. Even if this does not succeed, it can slow down the process and drain your estate.

Other claims that may have arisen during your lifetime may also be made against your estate.

Trusts

You may include a trust in your will. A trust might be a good option if you wish to delay the payment of a gift to its ultimate recipient. For example, you might specify that a gift passes immediately to a trustee (usually your executor***) and that the trustee must pass the gift to your child upon them reaching 18 years old (or some other age). You might then also specify that the trustee can, in their discretion, transfer part of the gift early (for particular purposes, such as their maintenance or education).

If you are interested in creating a complex testamentary trust***, you should seek legal advice.

Remains

You may specify your wishes as to your remains in your will, an annexure to your will or in a separate document altogether. Your executor does not technically need to follow your wishes, but they are likely to be implemented by your executor and family. (See remains***.)

Guardianship of children

You may appoint someone to be a “testamentary guardian” for those of your children who you are a guardian for upon your death. (Care of Children Act 2004, section 26.)

Generally speaking, the role of a testamentary guardian involves contributing to the child’s development and determining for or with the child(ren) important matters affecting them (including, for example, medical and education matters). It does not necessarily involve providing day-to-day care. (See Care of Children Act 2004, sections 15–16).

Ideally, you should seek the prior consent of the person. You may choose for the appointment to only take effect given certain conditions.

The appointment will only take effect if the appointee is 20 years or older at the time of your death. You should choose someone who is currently 20 years or older to ensure that the appointment does not fail.

What if I have property overseas?

If you have property overseas, you should obtain legal advice on how to write your will.

Most countries allow your executor to “reseal” your will after it has been probated*** in New Zealand. Similarly, New Zealand courts may reseal a will that has been probated overseas (Administration Act 1969, pt 2).

Resealing can be a costly process, and depending on your circumstances, it might be best to write various wills for each country that applies only to the property in that country.

Procedural steps

This Part of the Guide discusses the steps that you should take once you have decided what you want to do in your will and you have written it up (or someone else has done so).

Reviewing and Proofreading Your Will

Read, re-read and ensure you understand your will before you print it out.

You want to make sure there are no spelling mistakes, especially in names.

Ensure you use full legal names for all names in your will. You should refer to people alongside their relationship to you, current place of residence and occupation. For example, you might say “my daughter, Jane Roe Doe, of Wellington, Accountant”.

You also want to make sure it makes sense: does it do what you want it to?

Is it possible that parts of it could be understood in many ways, and if so, how can you change it to ensure it does exactly what you want it to?

Finally, are there any logical inconsistencies?

Example 1. Upon proofreading her will, A realises that she left “half to X”, “half to Y” and “half to Z”. Understanding this to be a mistake, she changes the will to read “a third to X”, “a third to Y” and “a third to Z”.

Example 2. A proofreads their will. It says “all my property to my children equally, and if one should die before me, then their share to that child’s children equally”. A had three children X, Y and Z. But X died two years ago leaving a child, W. A realises an ambiguity in her will. It might be read:

• (a) “to my currently alive children equally, and if one should die before me, then their share to that child’s children equally”; or
• (b) “to my children, including X (deceased), equally, and if one should die before me, then their share to that child’s children equally”.

Option (a) would mean that W gets nothing, while option (b) would mean that W gets a third of A’s estate. Realising that she means option (b), A changes her will accordingly.

Example 3. A’s will gifts “my jewellry to my daughter, Jan Doe”. But A does not have a child named “Jan Doe”. Upon seeing her mistake, A changes the will to read “my jewellry to my daughter, Jane Doe”.

Execution

Your will is not secure unless it is “executed” properly. Execution is the process of properly putting your will into effect. It is like signing a contract. However, the Wills Act 2007 (s 11) lays down various formal requirements that you must complete to execute your will:

(1) Your will must be in writing;

(2) Your will must be signed by yourself; and

(3) Your act of signing must be witnessed by two others.

Never execute and date two wills on the same day. Otherwise, it might be unclear which will is your “final will and testament”.

The remainder of this Part of the Guide discusses some of the nuances of this process. Getting this process correct is essential so that your will may be validated when the time comes.

Best practice

If you have written your own will, it is recommended that you approach a lawyer or the Public Trust to help you execute your will. They will provide witnesses and ensure the requirements under the Wills Act 2007 are complied with. This might involve a fee.

In writing

If your will is written by hand:

• You should avoid using non-permanent materials such as pencils; and
• You should ensure that, before signing it, all pages are numbered and attached in order.

If your will is prepared using a digital word processor (such as Microsoft Word):

• You must print it out; and
• You must ensure that, before signing it, all pages are numbered and attached in order.

Your signature

You should read and confirm all pages with your signature before signing at the end of the document, and your witnesses should sign next to you.

For signing at the end, you should ideally use a signature with all your initials in it.

You should execute the will by signing at the end of the document.

You cannot use an electronic signature (Contract and Commercial Law Act 2017, sch 5 pt 3). You should execute a printed copy, keep the executed copy safe and store a scanned version of the executed copy (see Safekeeping below***).

It is possible to get another to sign your will on your behalf. You should seek legal advice if you need this accommodation.

Witnesses

The witness requirements are complex. This is why it is recommended you seek professional help.

Picking witnesses. You must pick two witnesses who do not benefit directly (for example, your child) or indirectly (for example, your child’s spouse) under the terms of your will (Wills Act 2007, section 13). You might approach lawyers, legal executives, doctors, neighbours or community leaders for this purpose. Executors who do not benefit directly or indirectly from the will may witness your signature. Ideally Your witnesses must be sighted.

The witnesses must, in your presence:

(1) Both be together with you whilst you sign the will;

(2) Both name and sign the will;

(3) Both specify, alongside their name and signature, their address and occupation;

(4) Both acknowledge, alongside their name and signature, that they witnessed you sign the will; and

(5) Both acknowledge, alongside their name and signature, that they signed the will in your presence.

Example of Signature Block

You can refer to the example will*** to see what a signature block should look like. A signature block incorporates all of the above steps into something that can quickly be signed by the will-maker and witnesses.

Additional procedural steps

You should also date your will so that, in the likely event you prepare multiple wills throughout your lifetime, your personal representative may ascertain your final will and testament. The date should sit beside your signature in “DDst/nd/rd/th Month YYYY” format, and you should write it in pen right before signing.

To avoid any doubt as to your capacity to make a will, you might acquire a medical certificate from your doctor to the effect that you have capacity to make a will. Ensure that you get this at or about the time you execute your will.

Keeping your will

You must keep the original will (the one with pen ink on it) safe and easily accessible for those who you have chosen to administer your estate. If your will cannot be found, you may be treated as having died intestate.***

You should tell your executors and others where you store the original and any copies of your will.

You may store the original copy of your will with the lawyer who prepared it for you or the Public Trust. These are the safest options. If a lawyer has prepared your will, all copies should contain their contact details on a cover page so that the original can be retrieved from them when the time comes.

You should store any copies or, if applicable, the original, at a safe place in your home amongst other important documents. This might be in a filing cabinet, a desk or your bedside table. You might keep the will alongside documents such as a life insurance policy, your EPAs*** and your birth certificate, if you have any of these documents.

If you cannot locate your will or if it has been destroyed, you should make a new one. If your preferences have not changed, this might involve copying your lost/destroyed will and executing it (with a new date) again.

Changing your will and unintentionally cancelling your will

How to best cancel your will: change it

If you wish to cancel (“revoke”) your current will, you should revoke it by making a new, will that also contains a revocation clause **LINK. You should do it this way so that when your will is revoked, it is immediately replaced with a new one. If you do not immediately replace your will with a new one, you risk dying intestate.**

Example. A will-maker has a will in place that leaves all her property to her two children, A and B equally. After B sustains a physical disability, the will-maker decides to leave a greater proportion, 70%, to B for B’s additional need. The will-maker approaches her lawyer. The first clause in her new will says that “I entirely revoke all wills I have previously made”. It proceeds to distribute the property as the will-maker desires, 30:70 to A and B.

Other ways of cancelling your will

Although making a new will is the best way to cancel a will when you mean to cancel a will, there are other ways.

It is not recommended that you use any other method of cancelling your will because you risk being intestate. They are described here so that you may avoid them.

The ways are:

• (a) If you intentionally destroy (part of) your will (including by ripping, scribbling or crossing out), then the destroyed (part of the) will is cancelled; and
• (b) If you intentionally direct another to destroy (part of) your will, the same applies.

Unintentionally cancelling your will

You should also be aware of these events which automatically cancel your will (see Wills Act 2007, section 16):

• (a) If you enter into a marriage or civil union, there is a chance that your will is cancelled in its entirety (see further entering into marriage***); and
• (b) If your marriage or civil union ends (including separation and dissolution), your will is cancelled to the extent it involves your ex-partner (see further marriage ending***);

If these things happen, you should seek advice on the validity of your will and whether you should write a new one. After these events, you might nevertheless feel like changing the contents of your will.

The life cycle of making wills

The following diagram demonstrates the best practice for keeping on top of your will:

You should ensure that you spend most of the time at the twelve-o’clock position on the diagram so that your will always reflects your current circumstances and wishes. If your circumstances change (if you get married, purchase a new house, have children, start a business or inherit a large sum of money, for example), it is a good time to review your will.

Māori Wills

This Part of the Guide discusses the issues that arise in Māori wills.

Ōhākī

Wills need to be in writing.*** Ōhākī are therefore not valid.

Māori Freehold Land (MFL)

Gifting ownership of MFL

There are special rules contained within Te Ture Whenua Maori Act 1993 that govern your ability to gift your ownership of MFL by will.

You may only gift your interest in MFL to someone in the following groups of people (TTWMA, section 108(2)):

• (i) Your children (including whāngai) and “remoter issue” (your grandchildren, great-grandchildren, etc);
• (ii) A person or persons entitled to your interest if you had died intestate; ***[Link to MFL Intestacy]
• (iii) Blood relatives who are also members of the hapū associated with the land;
• (iv) Other owners of the MFL who are also members of the hapū associated with the land; and
• (v) A trustee of any of the above people (on behalf of the above people).

You cannot gift your interest to anyone else. If you try to, the gift is invalid, and the intestacy rules*** will apply.

Occupation and income rights associated with interests in MFL

If your principal family home is located on the MFL or you receive income/grants out of your interest, you may separately gift the following rights to your partner:

• (a) the right to occupy the principal family home; and/or
• (b) the right to receive any income/grants from the interest.

You can specify that the gift to your partner lasts for a set amount of time or their lifetime. Your partner cannot transfer these rights to others, but they can give them up.

Once your partner’s rights end, those rights “go back” to those who you gifted ownership to.

Intestacy

The ordinary rules of intestacy*** apply to all property of a Māori person with the exception of their ownership of MFL (TTWMA, section 110).

Special rules of intestacy*** apply to property that is MFL.

Additional information

The Māori Land Court’s website has forms available for successors.

Remains

Information for will-maker

You may express your wishes as to what happens with your remains either in your will or elsewhere.

Unlike the wishes you make about your property, your personal representative has the ultimate choice about what happens with your remains. In particular, they do not necessarily need to act according to your wishes, but they usually do provided you expressed them clearly.

Information for personal representative

You have rights and duties in relation to disposing the deceased’s remains.

You must quickly deal with the deceased’s remains (including the funeral process and beyond). You can use funds from the estate for this purpose.

It is your right to ultimately choose how to deal with the deceased’s remains. However, you should consider—

(a) The deceased’s wishes;

(b) The family’s wishes;

(c) The wishes of those close to the deceased;

(d) Applicable tikanga, custom, cultural practices and religious practices; and

(e) How to dispose of the deceased’s remains without undue delay

It is good practice to record your decision-making process in writing, especially if not everyone agrees with what should be done.

Information for whānau and interested persons

You may challenge the personal representative’s decision as to how the deceased’s remains are disposed of at the High Court. However, you should first express your views to the deceased’s personal representative.

The High Court may intervene in the personal representative’s decision if it considers it “inappropriate” considering all the relevant viewpoints and circumstances. You or your lawyer must prove that the decision is “inappropriate”.

Enduring Powers of Attorney (EPA)

This Part of the Guide introduces EPAs, discusses the alternative to EPAs, provides information about making and maintaining EPAs and contains information for “attorneys”.

What is an EPA?

EPAs are documents that the maker (“you”) signs now, whilst the maker is mentally capable, so that in the future, when the maker are not mentally capable, they have some certainty about who will be making decisions on their behalf, what sorts of decisions those people can make and how those people will be allowed to make such decisions.

There are two types of EPA. You may appoint a property attorney and/or a care and welfare attorney(C&W attorney). Your property attorney manages your property. Your C&W attorney manages your care. Neither attorney has to be a lawyer. Attorney is just the confusing name (given we associate them with lawyers) given to the person sho can make decisions on your behalf.

The key feature of an EPA is that it is still effective when you become mentally incapable of looking after yourself and your property. You may choose for your property EPA to come into effect—

• (a) Immediately after signing it, such that it continues to be valid when you become mentally incapable; or
• (b) Only when you become mentally incapable.

C&W EPAs may only come into effect if (b) applies. Usually, EPA-makers choose to have both types of EPAs to come into effect only when they become mentally incapable.

Your attorneys, if they are different people, may have to work together. For example, your C&W attorney may work with your property attorney to obtain private healthcare if doing so is in your best interests. They will also try to work alongside you, as much as that is possible.

Example 1. A became incapacitated in a skiing accident. A signed two EPAs a couple years before the accident appointing their partner, B, to be A’s property attorney and C&W attorney. A was unconscious for a few days during which time B acted as A’s C&W attorney to work through A’s care with A’s doctors. B did not need to use any of B’s powers as property attorney. When A regained consciousness and mental capacity, B ceased to make decisions on A’s behalf.

Example 2. A’s partner, B, was A’s attorney under two EPAs (a property and C&W EPA). A made the EPA before they lost capacity due to dementia. A’s EPA appointed their child, C, as the “successor attorney”***. When B suddenly died, C immediately took over B’s role as A’s attorney.

The Alternative: PPPR Orders

If you do not have an EPA in place, then no one is automatically allowed to step up to begin making decisions for you. Arranging care and property arrangements for you involves a complex process at the Family Court that is best avoided.

The next of kin does not automatically have the same decision-making ability as an attorney when the incapacitated person has not made an effective EPA. Doctors may not listen to next of kin who have not been appointed under an EPA or appointed by the Family Court.

Applications for PPPR orders are often “contested”—that is, multiple family members often argue over who should be appointed to be the incapacitated person’s “welfare guardian” (the rough equivalent of a C&W attorney), their “property manager” (the rough equivalent of a “property” attorney) or their “property administrator” (someone who manages just one, small item of property). However, instead of the incapacitated person getting to choose the who, what and how of the care and management arrangements (as in where they have made an EPA), it is the Family Court that gets to choose the who, what and how in the care arrangements under a PPPR order.

The next of kin should seek legal help if they wish to be appointed welfare guardian or manager.

You can find out more about PPPR orders here:

• A Guide to Making Applications under the PPPR Act (this resource is slightly outdated, but it is comprehensive); and
• Community Law’s Website.

Making an EPA

Should I make an EPA?

Yes. Every eligible person*** should make an EPA, regardless of their age or circumstances.

EPAs are designed for situations in which you are incapacitated (unable to make decisions for yourself), whether foreseen or not (see the above examples***). They are especially important in unforeseen situations where you and your family have not had time to prepare.

The benefits and risks of creating an EPA are presented below. Consider how you might minimise the risks.

Benefits	Risks
Simplifies the process for your family when you lose capacity. Customisable: you may limit the powers. Accountability: you may appoint multiple property attorneys, and you may require all attorneys to consult, both to increase accountability.	Makes you vulnerable to mistreatment or economic/financial abuse. You may limit the powers too much or fail to clearly express your preferences. Your EPA may become out of date: the arrangements you once made may no longer reflect your preferred arrangements now.

Can I make an EPA?

To make an EPA, you must be at least 18 years old and mentally capable.

What should I think about before and while preparing my EPA?

Who can be my attorney?

You may appoint any individual to be your attorney, except for the following people (PPPRA, section 95(3)):

• People under 20 years old at the time you make your EPA;
• People who are bankrupt at the time you make your EPA; and
• People who are not mentally capable themselves at the time you make your EPA.

Even though someone you appoint might not come within any of these categories at the time you sign your EPA, these conditions may stop someone from acting as your attorney if they exist when you lose mental capacity (PPPRA, section 106). You should appoint successor attorneys** where your first choice of attorney is unable to act for you.*

A trustee company may also be your attorney.

You may have multiple property attorneys at the same time, but only one C&W attorney at the same time.

If you choose to have multiple property attorneys, you may say that they must act “jointly” (together) and/or that they may act “severally” (individually).

You may choose an attorney to be both your property attorney and your C&W attorney.

Example. A validly appoints someone, B, to be their attorney under two EPAs. B is adjudged bankrupt, and then a couple of months later, A loses mental capacity. B cannot act as A’s attorney. Fortunately, A validly appointed another, C, to be their successor attorney under both EPAs. Nothing stops C from acting as A’s attorney, so C is able to act as A’s attorney.

What powers does my attorney have?

You get to choose the scope of your attorney’s powers.

You may, for example, choose for your property attorney to act generally or specifically in relation to all or only some parts of your affairs (PPPRA, section 97). The standard form allows you to choose amongst the following options:

“My attorney can act on my behalf on: (tick one)

• all my property affairs
• only the part of my property affairs I have specified: [specify part(s)]
• only the following specified things: [specify thing(s)]

My attorney’s authority to act is subject to the following conditions and restrictions: (optional) [write any conditions or restrictions].”

The same is true of your C&W attorney. On the standard form, you may choose amongst the following:

“My attorney can act on my behalf on: (tick one)

• all my personal care and welfare matters
• only the matters relating to my personal care and welfare I have listed: [list matter(s)]

My attorney’s authority to act is subject to the following conditions and restrictions: (optional) [list any conditions or restrictions].”

You can require that your attorneys (of both types) consult with people or provide information to people of your choosing.

Example. A appoints B to be their property attorney and C to be their C&W attorney under two EPAs. B’s powers are limited to managing A’s real estate portfolio. When C suggests that B break A’s term deposit to be able to get A private medical care, B tells C that they cannot do that.

How can I make an EPA?

There are two key steps to making an EPA:

• (1) Your EPA must be in the “prescribed form”;
• (2) Your EPA must comply with formalities (including being witnessed by a legal professional).

Because your EPA must be witnessed by a legal professional, it is best practice to consult a lawyer (or the Public Trust) to complete the whole process with you from beginning to end. They will likely also want to ensure that your will is in order. It is a convenient opportunity to review your will, if any, at this time.

Writing your EPA in the prescribed form

You may prepare your EPA by yourself using Te Tari Kaumātua’s DIY forms:

• EPA in relation to personal care and welfare including witness certificate (.pdf format);
• EPA in relation to property including witness certificate (.pdf format); and

You can obtain .docx formats from this link if you wish to fill in your forms using Microsoft Word. You will have to do this if you want to:

• Write more in the space than the default sizes allow you to (by increasing the size of the spaces);
• Appoint more attorneys or successor attorneys than the form allows you to by default (you may copy, paste and modify the relevant sections, and do not forget the corresponding signature and witness sections); or
• Require your attorney(s) to consult or provide information to more people than the form allows you to by default (you may copy, paste and modify the relevant sections).

The witness certificates at the end of the EPA document will be used by the legal professional to complete the execution process.

If you want both types of EPA, you should complete both forms.

You should read and understand all the information in the forms before filling in the forms. You may supplement your understanding with the information contained within this Guide and the additional information linked at the end of this Part.

If you misunderstand any part of the form or the role of attorney, you may wish to fill in the form with the help of the legal professional (see below**).*

Formalities

If you have chosen to write your EPA(s) yourself, you need to engage one of the following to properly witness and help execute your EPA(s):

• A lawyer;
• A law firm; or
• A trustee company (the Public Trust or Māori Trustee, for example).

While all lawyers are qualified to help you, a law firm or trustee company may provide you with a non-lawyer (with other qualifications) to help you. Ensure you notify them that you want them to help you complete an EPA you have prepared for yourself.

Your attorney(s) (including your successor attorneys, if any) must also sign in the presence of a witness, not being yourself or the professional witness who helped you sign your EPA(s).

Example. A and B, spouses, decide to write EPAs appointing each other as their attorneys. They engaged LegalBeagles, a law firm, to help them write and sign their EPAs. LegalBeagles ’ director, C, and an associate, D, helped A and B on the day. C acted as the legal professional and witnessed A’s signature on A’s EPA and B’s signature on B’s EPA. D witnessed B’s signature on A’s EPA and A’s signature on B’s EPA. The EPAs comply with the formalities.

	A's EPA	B’s EPA
A’s signature	A legal professional has to witness A sign their own EPA and explain the effects of the EPA. C is such a person.	Any person that is not B or C may witness A’s signature as an attorney on B’s EPA. D is such a person.
B’s signature	Any person that is not A or C may witness B’s signature as an attorney on A’s EPA. D is such a person.	A legal professional has to witness B sign their own EPA and explain the effects of the EPA. C is such a person.

Keeping my EPA

You should distribute a copy of your EPA to all your attorneys and successor attorneys. If you have nominated separate people to be each type of attorney, it is best practice to give all attorneys (including successor attorneys) both EPA documents so that they may cooperate when they need to.

You should also give a copy to your significant other and other close family members. Store your own, original copy, amongst your important documents***[link to keeping a will safe].

Advanced Care Plan

If you make an EPA, you might consider whether you also want to prepare an Advanced Care Plan (ACP). An ACP allows you to lay out your wishes and preferences for your care whilst you are still able to lay them out. They are not just for end-of-life arrangements—you may also wish to lay out your wishes in case of sudden illness or accident.

You can find out more information about making an ACP here:

Resource	Description
Tō Tātou Reo | Advance Care Planning	This resource can help you make an ACP.
ACP form	This resource is a part of the above resource. It is a form for you to fill in, and it considers all the matters that should be contained within an ACP.
Citizens Advice Bureau	This resource has some basic information about “living wills” (that is, ACPs).
Health and Disability Commissioner	This resource does the same as the CAB’s resource.

What if I have property located overseas?

Your New Zealand EPA is not necessarily valid outside of New Zealand. If you have (substantial) property overseas, you should make an EPA in each country where you have property. You can find some information about different jurisdictions below:

• Australia (NSW, Qd, Vic, WA); and
• United Kingdom (“Lasting Powers of Attorney”, LPA).

As in Australia, the laws differ in the states/provinces of the United States and Canada. In relation to the states of the United States, you may search for “springing power of attorney” and “durable power of attorney” alongside “enduring power of attorney”. In relation to Canadian provinces, you may search for “continuing power of attorney” alongside “enduring power of attorney”. Ensure that you understand the differences in these types of arrangements—they do not necessarily work the same way as EPAs in New Zealand.

Different jurisdictions have different requirements. Ensure you read and understand the information about each jurisdiction before filling out any forms and before seeking legal advice.

Changing, suspending and cancelling an EPA

Changing an EPA

You may alter your EPA by cancelling*** your existing EPA and making*** another one. You can do both these things by completing Part B (and all the other parts) of a new standard EPA form. You must give the old attorney(s) a copy of the new EPA to ensure the old one is cancelled, including if you re-appoint an old attorney as a new attorney on different terms. (PPPRA, section 95A.)

The idea is that your attorneys can only know that they are no longer allowed to take action under a cancelled EPA unless they have seen the new EPA cancelling the cancelled EPA.

Example. A has EPAs appointing her ex-husband, B, as her attorney. After she remarries to C, she creates new EPAs appointing C as her attorney. In her new property EPA, she ticks “I revoke all previous EPAs in relation to my property that I may have given except those specified below (if any)”, and she does not “specify any below”. She does the same on her C&W EPA. A signs her new EPAs properly and gives B a copy of both new EPAs. The new EPAs now replace the old EPAs.

Suspending an EPA

If your attorney begins acting under an EPA because you become mentally incapable, and you then regain mental capability, you may “suspend” the EPA by writing to your attorney that the power is suspended (PPPRA, section 100A). Suspending the power only stops the attorney from acting now. The EPA will kick in again in the future if and when you become mentally incapable again.

You must use this form.***[Link to NZLII suspension form].

Cancelling an EPA

If you wish only to cancel (“revoke”) your EPA without replacing it, you may write to the attorney that the power or the appointment is revoked whilst mentally capable (PPPRA, section 106). You should write to all of your attorneys under the EPA you wish to cancel (see PPPRA, section 106A).

You must use this form.***[Link to NZLII cancellation form]

Further Information

A lot of information is contained within the Schedule to the Protection of Personal and Property Rights (Enduring Powers of Attorney Forms and Prescribed Information) Regulations 2008. Here, you can find all the forms you need. However, they are in an inaccessible format.

Helpfully, Te Tari Kaumātua provides additional information and has organised the information in the Schedule into individual, ready-to-use forms:

• EPA in relation to personal care and welfare including witness certificate;
• Explanation of EPA in relation to personal care and welfare;
• EPA in relation to property including witness certificate; and
• Explanation of EPA in relation to property.

The explanation forms are designed for the qualified witness to tell you about the effects of each type of EPA. However, they are useful for you if, at this stage, you are contemplating creating an EPA.

Information for Next of Kin

Next of kin do not automatically have the same decision-making powers as attorneys.

Next of kin only have these powers if they:

• Are appointed an attorney under an EPA; or
• Are given powers under a PPPR order***.

A PPPR order requires an application to the Family Court. You, the incapacitated person’s next of kin, will need to apply to the Family Court if the incapacitated person does not have an attorney and you wish to make decisions on their behalf. You should seek legal advice if this is the case.

Information for Attorneys

Becoming an Attorney

Becoming an attorney under an EPA is a significant decision. If the EPA becomes effective, the role involves a lot of responsibility. You should ensure you are comfortable with the role before committing to it.

You might consider the following factors before agreeing to become a particular person’s attorney:

• Ensure you understand the role (have a read of the below and the additional information);
• Ensure you understand the scope and limits of the powers that the maker of the EPA proposes that you have;
• Ensure you have the right skills, organisational habits and time to be able to properly carry out the role;
• Consider whether you are able to act only in the EPA-maker’s best interests only; and
• Consider whether you can handle making decisions that not everyone agrees with.

You can learn more about the process of signing the EPA document above.***

Activating your Role

For property attorneys, your role activates when the EPA says it does. Usually, this is when the EPA-maker becomes mentally incapable. Sometimes, it is immediately. If your role only activates when the EPA-maker becomes mentally incapable, then your powers under the EPA are activated only when a health professional certifies that the EPA-maker is not mentally capable (PPPRA, section 97(5)).

For C&W attorneys, your role activates only when the EPA-maker becomes mentally incapable. If there is reason to think this is the case, you should immediately seek a health professional’s certification that the EPA-maker is mentally incapable in order to fully activate your powers under the EPA (PPPRA, section 98(3)(a)). You may make limited decisions in the meantime (see PPPRA, section 98(3)(b)).

A successor attorney’s*** role activates when the first attorney(s) are no longer attorneys. You, a successor attorney, might prove to someone that you are now the attorney by showing proof that the EPA-maker is mentally incapable and evidence that the first attorney is no longer an attorney (such as the first attorney’s death certificate or a certificate that the first attorney is themselves mentally incapable).

Information for Property Attorneys

Your role is laid out mostly in sections 97–97A of the PPPRA 1988 and the EPA document. The EPA document may contain important information about how the donor has chosen to modify your role.

The kinds of decisions you may make include:

• (a) Raising funds for the EPA-maker’s care and welfare;
• (b) Paying their bills;
• (c) Managing and maintaining their assets; and
• (d) Organising benefits.

You must use the donor’s property in the “promotion and protection of the donor’s best interests”, and you must encourage the donor to be able to care for their own affairs (PPPRA, section 97A).

You should try to act in accordance with the donor’s wishes and preferences. You should try to act consistently with the donor’s will, if they have written one. (See Ademption***.)

You can find more information about becoming an attorney here.

Information for C&W Attorneys

Your role is laid out mostly in sections 98–98A of the PPPRA 1988 and the EPA document. Do not forget to read the EPA document—it may contain important information about how the donor has chosen to modify your role. The EPA-maker might also have expressed their wishes in other documents, such as an ACP***. You should ensure you have looked for an understood these documents, if any.

Your role is not limited to making medical decisions. The sorts of decisions that you may make include:

• (a) Decisions about the donor’s living arrangements;
• (b) Decisions about the donor’s medical needs;
• (c) Decisions about the donor’s routine;
• (d) Decisions about the donor’s social, cultural or religious activities; and
• (e) Decisions about the donor’s end-of-life care.

There are some decisions you are not allowed to make. This applies even if the donor has expressed wishes about these matters. The matters are (PPPRA, sections 18(1), 98(4) and 99A(2)):

• (a) Decisions about the donor’s relationship status;
• (b) Decisions about adoption;
• (c) Refusing consent to standard medical treatment;
• (d) Consent to electro-convulsive treatment;
• (e) Consent to destroy part of the donor’s brain or its function to alter their behaviour;
• (f) Consent to experimental medicine; and
• (g) Requesting assisted dying.

You must use your powers for the “promotion and protection of the donor’s best interests”, and you must encourage the donor to be able to understand and communicate their own decisions about their care and welfare (PPPRA, section 98A).

You can find more information about becoming an attorney here.

Proof of Authority

Sometimes, someone (e.g., a bank) might be unwilling to deal with you on the EPA-maker’s behalf because, despite being able to look at the EPA document, they cannot be sure that it has not been revoked or suspended.***

Provided you are not aware of the EPA having been revoked*** (including automatically revoked***) or suspended,*** you can prepare and sign this form*** and present it to the person who is unwilling to deal with you. They can rely on this certificate to be sure that their dealings with you are legitimate (PPPRA, section 103C).

Stopping Being an Attorney

You choosing to not be an attorney

You may stop being an attorney by “disclaiming” the role (PPPRA, section 104).

If the EPA-maker is mentally capable, then you simply need to write to them to disclaim the role.

If the EPA-maker is not mentally capable, then you must file a notice with the Family Court that you mean to disclaim the role.

The EPA-maker choosing to stop the EPA

The EPA-maker might choose to suspend*** or cancel*** the EPA that appoints you. If the EPA is suspended, you are still an attorney under the EPA, but your ability to act is stopped in the meantime, until the EPA is reactivated. If the EPA is cancelled, then you are no longer an attorney under that EPA, but the EPA-maker might re-appoint you on new terms.

When EPA automatically stops

An EPA is automatically revoked if:

• The EPA-maker dies;
• The attorney is adjudged bankrupt; or
• The attorney loses capacity.

Summary of Forms Available in this Part

The following forms are referred to in this Part:

• Property EPA (.pdf);
• Property EPA (.docx);
• Explanation of property EPA;
• C&W EPA (.pdf);
• C&W EPA (.docx);
• Explanation of C&W EPA;
• Notice suspending EPA;
• Notice revoking EPA; and
• Attorney’s certificate of authority.

Administration

Overview

This Part of the Guide provides information about administering the deceased’s estate. It is for those named as “executor” in the will or those appointed by the Court as “administrator”. Collectively, executors and administrators are called “personal representatives”.

Personal representatives often have to apply to the High Court at Wellington in order to deal with parts of the deceased’s estate, but sometimes they can do things without needing to go to the High Court. When they go to the High Court, the Court gives what is called “probate” (in the case of an executor) or “letters of administration” (in the case of an administrator). These types of order are collectively known as “grants of administration”.

Once the executor/administrator has obtained a grant of administration, there are a few main steps to administer the estate. They need to:

• (1) Call in any amounts owing to the deceased;
• (2) Pay the deceased’s debts;
• (3) Pay any expenses; and
• (4) Distribute the assets according to the applicable rules (in the will or according to the intestacy rules).

This is the process known as administration.

Importantly, a personal representative’s position does not entitle them to anything more than the will allows or the default intestacy rules*** allow. The personal representative’s role involves preparing the property so that the terms of the will/intestacy rules can be followed. Often, a personal representative is gifted something under the will or is entitled to something under the intestacy rules, but personal representatives should understand that their role as personal representative and beneficiary*** are separate.

This Part of the Guide is designed to give you an idea of what applying for a grant of administration and administering the estate looks like. It also goes over the things that the next of kin is able to do without a grant of administration. You should not rely on the information in this Part for doing these things. You should seek legal advice.

Small Estates: Dealing With the Estate Without Court Process

Sometimes, the next of kin can deal with particular assets without needing to apply for a grant of administration from the High Court at Wellington. It is important to note that this only applies to some assets that are worth less than $15 000 (Administration (Prescribed Amounts) Regulations 2009, regulation 4). This amount is under review as of December 2024, and it might have increased. Any other assets can only be dealt with by the executor (who has to apply for probate) or an administrator after getting letters of administration.

Government Stock

Government stock (with nominal value of no more than $15 000) or local stock (with nominal value of no more than $15 000) can be accessed by the next of kin without a grant of administration. The next of kin needs to prove to the registrar of the stock that (Administration Act, section 64):

• The deceased died;
• The next of kin is left the stock under the will or the intestacy rules or that the next of kin is the executor named in the will or entitled to letters of administration***; and
• No grant of administration has been made (in New Zealand).

Company Shares and Debentures

Shares in a company that have been paid up to no more than $15 000 and debentures issued by a company with no more than $15 000 owing (principal and interest) may be accessed by the next of kin without a grant of administration. To do so, the next of kin has to prove to the registrar of the security that (Administration Act 1969, section 64A):

• The deceased died;
• The next of kin is left the shares under the deceased will or the intestacy rules or that the next of kin is the executor named in the will or entitled to letters of administration***; and
• No grant of administration has been made (in New Zealand).

You can initiate this process by getting in contact with the company.

Money

The following sources of money can also be accessed by the next of kin without a grant of administration, provided they are individually less than $15 000:

• Money in a superannuation fund;
• Money owed by a bank from bank accounts
• Money deposited with a society;
• Money owed by a recent employer of the deceased;
• Money owed by a local authority;
• Money owed by a trustee corporation;
• Money owed by Kāinga Ora;
• Money owed by ACC;
• Money owed by the Ministry for Social Development; and
• Money owed by the Crown.

The next of kin needs to prove to the organisation that the deceased died and that no grant of administration has been made (in New Zealand). You might have to put these amounts towards the administration of the deceased’s estate, like funeral costs and costs for legal advice.

You can initiate this process by contacting the organisation. You will need at least proof of death (for example, a death certificate).

Life Insurance Money

Some life insurance policies are designed so that, upon the death of the insured person, money is paid directly to a different person, the “Policy Owner”, usually the next of kin. This money never forms part of the deceased person’s estate, and so the next of kin (the Policy Owner) never needs to worry about the administration process when it comes to the life insurance money, no matter how much it is. In order to access the amount, the Policy Owner should contact the insurer.

In other life insurance policies, the insured person and the Policy Owner is the same person. When the insured person dies, the life insurance payout is then owed to the deceased’s estate. These payouts can be accessed by the next of kin without a grant of administration if the total amount, including profits but excluding any deductions, is less than $15,000. The insurance company can pay the money if they are satisfied the deceased has died and no grant of administration has been made in New Zealand.

In order to access the small payout from the second type of insurance policy, the next of kin needs to prove that the person died and no grant of administration has been granted in New Zealand (Administration Act, section 65(5)). To start, contact the insurance company and provide proof of death, such as a death certificate.

Example 1. A and B, spouses, create joint life insurance policies over their own lives, each naming the other as the Policy Owner under their respective policies. When A dies, B is paid the $900 000 payout directly even though A’s will left all of A’s assets to A and B’s children.

Example 2. A creates a life insurance policy that insures their own life in which they are the also the Policy Owner. When A dies, the insurer owes A’s estate $900 000. Because the amount owing is more than $15 000, the next of kin cannot access the payout without a grant of administration.

Other Assets

If an asset does not meet the conditions of any of the above types of asset, then it can only be dealt with by an executor or administrator that has been granted probate or letters of administration. In particular, notice that all of the above requires there to not be a grant of administration in New Zealand—in this case, the executor or administrator (whether or not they are the next of kin) has to access the funds. The next Part of the Guide goes over how an executor or administrator can go about getting a grant if they have not done so already.

Example. The deceased died intestate. They left a bank account with Bank ABC with $8 500 and a bank account with Bank XYZ with $17 000. Noone has applied for a grant of administration. The next of kin can contact Bank ABC to access the $8 500 amount in the meantime, but they will need to wait until someone is granted administration before they can access the amount deposited with Bank XYZ.

Determining Which Grant Application to Make

This is the Subpart of the Guide that discusses applications for grants of administration—a complex area of the law.

Use the following diagram to determine which application you have to make. The diagram’s letters point to headings in this Subpart of the Guide which further explain the box in the diagram. For example, you can find more information about an executor’s ability to apply for probate at heading C. The numbers point to headings in the next Subpart which further explain the type of application. For example, you can find out more about letters of administration on intestacy at heading 3 of the next Subpart.

A Search for a will

Finding a will

Ideally, the deceased had informed (and sought the prior consent of) the person(s) they elected to be their executor. In this case, you (the executor) should contact the deceased’s lawyer to obtain a copy of the will.

Other times less might be known about the deceased’s will or whether they left one. In such circumstances, you must figure out whether the deceased had a will.

Try to remember if the deceased told anyone about where they stored their copy of their will. Search for a will amongst the deceased’s records and important documents. Also search in areas where the deceased may have written a will (their desk or armchair, for example) and around their house.

The original copy is usually held by the deceased’s lawyer (provided they consulted a lawyer). To locate the deceased’s lawyer—

• Try to remember, or consult with family and friends about, the name of the deceased’s lawyer at the various location where they lived throughout their life;
• Search the deceased’s records for the name of the deceased’s lawyer;
• If the deceased owned land, search the land register for the transfer document (it usually contains the name of the lawyer that helped with the transaction);
• Contact the Law Society for help; and
• Advertise the deceased’s death in newspapers.

Otherwise, the will may be held by the Public Trust or another institution that helped the will-maker write their will. You might search amongst the deceased’s documents to see if they engaged any of these organisations to help them write a will.

You want to take care to find the deceased’s most recent will. So, even if you find a will, you should continue your search in case the will-maker made a later will.

You should refer to this will search checklist***[link to NZLII document].

B Did the deceased leave a will?

If the deceased did not leave a will, then you (or someone else who is eligible) may apply for letters of administration on intestacy.*** Your searches must have been thorough to establish beyond doubt that the deceased did not leave a will. To “establish beyond doubt” that the deceased did not leave a will, you should usually have advertised with the Law Society.

If the deceased left something written that looks like a will but was not properly executed***, you should consult a lawyer. The document may be able to be validated as a will under s 14 of the Wills Act 2007, but this is a very complex process.

C Does the will appoint an executor?

If the deceased’s will did not appoint an executor, then the court will appoint an administrator to carry out the instructions in the will. The administrator should apply for letters of administration with will annexed.***

D Is the executor capable of applying for probate?

Sometimes, a will appoints an executor, but the executor is not able to be an executor for some reason. These reasons are:

• (a) The executor died before the testator;
• (b) The executor is too young (under 18 years old: Administration Act 1969, section 9(3));
• (c) The executor lacks mental capacity; and
• (d) The appointment is void (e.g. by dissolution of marriage).

If one of these reasons applies and there are no other executors, then the court will appoint an administrator to carry out the instructions in the will. The administrator should apply for letters of administration with will annexed.***

E Will the executor apply for probate?

Even though the executor can apply for probate, they might fail to do so by choice or by accident. If the executor is informed that they need to apply for probate, and they still fail to do so, then an administrator might need to apply for letters of administration.

In these situations, an administrator should apply for letters of administration with will annexed.*** The best way to do this is to get written confirmation from the executor that they “renounce” (give up) their right to be granted probate and attach this to the application documents.

Types of Grant Application

This Part of the Guide will help give you an idea of the sort of application the executor or administrator will make to the High Court at Wellington. However, it only covers situations where all parties are agreed as to the validity of the will and as to those who are executors or those who are to apply to be administrators.

It is best practice to get legal advice to help you with this process. The cost of this advice can usually be taken from the estate. Applicants for probate (that is, executors named in the will) should be the most confident in their ability to charge their legal expenses against the estate, because they are usually allowed to do so under the terms of the will. This Part of the Guide might therefore be most helpful to those who need to obtain letters of administration (that is, applicants where there is not an executor) because they are only allowed to charge their legal expenses if the High Court appoints them as an administrator. If in doubt, you may consider engaging a lawyer that provides a free first consultation to get an idea of how you might go about covering fees of any advice.

1 Probate

Probate is the process of proving the will and affirming the appointment of the executors within it. You need to put together the following forms to the High Court at Wellington:

• An application without notice for obtaining grant of probate***[link to NZLII document] (based on High Court Rules 2016, sch 1, Form PR1AA);
• An affidavit for obtaining grant of probate***[link to NZLII document] (based on Form PR1);
• The will;
• Any other document required to be attached to the above documents (death and marriage certificates, for example).

2 Letters of administration with will annexed

When the testator left a will but, for some reason, there are no executors, then someone will have to apply for letters of administration. This will apply if (High Court Rules, rule 27.25):

• (a) The will fails to appoint an executor;
• (b) The executor named in the will dies in the lifetime in of the testator;
• (c) The appointed executor rejects the role;
• (d) The appointed executor fails to apply for probate;
• (e) The appointed executor is incompetent because they are too young or ;
• (f) The appointment is void (e.g. by dissolution of marriage).

The beneficiaries under the will may come to an agreement as to who applies for administration. It is ultimately the High Court which decides if someone can be an administrator.

Generally speaking, the default priority is (High Court Rules, rule 27.26):

• (1) A trustee for a residue beneficiary;
• (2) A “residuary beneficiary for life”;
• (3) Other beneficiaries;
• (4) The deceased’s creditors;
• (5) People who might otherwise have an interest in the estate (if it were larger, upon a condition or if the deceased had died intestate).

The applicant needs to file the following documents at the High Court:

• An application without notice for letters of administration with will annexed***[link to NZLII document] (based on High Court Rules 2016, sch 1, Form PR1AA);
• Affidavit for obtaining grant of letters of administration with will annexed***[link to NZLII document] (based on Form PR2);
• The will; and
• Any other document required to be annexed to the above documents (death and marriage certificates, for example).

3 Letters of administration on intestacy

In the case of intestacy, those who will be inheriting according to the intestacy rules should come to an agreement about who applies to become administrator of the estate. It is ultimately the High Court which decides if someone can be an administrator.

The default priority for administration matches the intestacy rules and is as follows (High Court Rules, rule 27.35):

• (1) The deceased’s partner;
• (2) The deceased’s children;
• (3) The deceased’s parents;
• (4) The deceased’s siblings or the issue*** of any deceased sibling;
• (5) The deceased’s grandparents;
• (6) The deceased’s uncles and aunts or the issue*** of any deceased uncle or aunt;
• (7) The Attorney-General; and
• (8) The deceased’s creditors.

A partner loses their right to administer their estate if they choose to “give up” their rights to inherit under the intestacy rules to be able to inherit under the Property (Relationships) Act 1976. If the partner chooses to do this, they split their property with the deceased as if their relationship ended within the deceased’s lifetime, and the partner loses their right to inherit from the deceased’s estate. (See Administration Act 1969, section 6(1)).

If the family can come to an agreement about who is best able to administer the estate, and if they decide that that person should apply for letters of administration, then that person should do so. If there are people with equal or higher priority than that person, then the applicant needs to obtain written consent from those with equal or higher priority.

The applicant needs to file the following documents at the High Court:

• An application without notice for letters of administration on intestacy (based on High Court Rules 2016, sch 1, Form PR1AA);
• The relevant affidavit for obtaining letters of administration on intestacy, being one of:
  • Affidavit for obtaining grant of administration on intestacy to surviving spouse, civil union partner, or de facto partner ***[link to NZLII document] (based on Form PR3);
  • Affidavit for obtaining grant of administration on intestacy to daughter or son of deceased***[link to NZLII document] (based on Form PR4);
  • Affidavit for obtaining grant of administration on intestacy to parent of deceased***[link to NZLII document] (based on Form PR5);
  • Affidavit for obtaining grant of administration on intestacy to brother or sister of deceased (based on Form PR6); and
  • Any other document required to be annexed to the above documents (consents, death certificates and marriage certificates, for example).

Example 1. The deceased died intestate with an estate worth $200 000. The partner chooses to inherit according to the intestacy rules. They apply to the High Court for letters of administration on intestacy, and they were appointed administrator. After all the costs of the administration (funeral costs, accounting services, etc), there is $185 000 left over. The partner then follows the intestacy rules*** in order to distribute the estate—the partner transfers $165 000 to themselves and $10 000 to both of the deceased’s two children.

Example 2. The deceased, A, died intestate leaving their partner, B, and A and B’s children, X, Y and Z. B decides to inherit under the intestacy rules. The bereaved decide that X, being an accountant, is well-positioned to administer the estate. X obtains formal consents from B, Y and Z. Along with all the other documentation, X applies to the High Court at Wellington for letters of administration on intestacy. The Registrar grants X letters of administration.

Purpose of the High Court forms

The purpose of the High Court applications for probate and letters of administration are four-fold.

Firstly, the application documents are used to prove that the deceased died and that they died with the attached will (or, in the case of letters of administration on intestacy, that they died with no will).

Secondly, the application process indicates that the applicant consents to being the executor/administrator.

Thirdly, the application documents are used to confirm the proper executor/administrator of the estate. In the case of probate, it is a usually straightforward matter of reconfirming the role of the executors named in the will. Sometimes, the executor will have to explain why they are not joined by a named co-executor or, if they are a substitute executor, why the primary executor is not applying for probate.

In the case of letters of administration with will annexed, the applicant has to explain why an executor is not applying for probate and why they, as opposed to any other person, should be appointed to be the administrator. If someone has higher priority than the applicant, then the applicant has to explain why the applicant, and not the other person, should be granted letters of administration. This is usually done by getting consent from the person with higher priority.

In the case of letters of administration on intestacy, the applicant has to demonstrate that they have the highest priority to get letters of administration or, failing that, why anyone of higher priority should not be granted letters of administration. This is usually done by getting consent from the person with higher priority.

Finally, the application documents bring the identity of the executor/administrator to the attention of the High Court. Moreover, when there is a will, the will becomes part of the public record and can be requested from the High Court*** by others for a fee. This helps to hold the executor/administrator accountable for all the people interested in the proper administration of the deceased’s estate. They also require that you justify why notice is not given to other people.

If you are preparing the application documents yourself, then you should keep these purposes in mind as you complete them.

Completing Documents for the High Court

The following contains a checklist of things that must be done before a document can be filed with the High Court. Most of the formatting requirements are already implemented into the forms that you can download from this website.

Of course, it is best practice to engage a lawyer to prepare your documents for you. If you make a mistake in your application, you might incur additional cost, or you might cause (costly) problems down the line during the administration process.

Moreover, preparing these documents is not merely a “pick the right option” exercise. The forms do not cover more complex scenarios. If you find that the forms do not cover your situation, it is probably because they do not—your situation needs to be specially addressed, ideally by a lawyer. Perseverant applicants may consult either the sixth edition or seventh edition of Dobbie’s Probate and Administration Practice (LexisNexis, Wellington). Dobbie’s Probate is written, in part, by the Registrar of the High Court at Wellington, and the book covers just about all possible scenarios.

Finally, your forms must be accurate and truthful. You should never file something at the High Court that you know to be false or that you think might be false. You should never file something at the High Court that you are unsure about. You should never file something that you do not understand. If you are unsure about or do not understand anything, you should seek proper legal advice.

Rule(s)	Topic	Description
High Court Rules, rule 5.4	Typing	Everything except for the date and signature must be typed.
Rule 5.5	Margin	A quarter-page margin must be on the left-hand side.
Rules 5.7(1), 5.8 and following	Cover sheet	The first sheet of a document must be a cover sheet displaying certain information. See the documents of this Guide.
Rule 5.7(2)–(3)	Numbering of pages	All pages except the cover sheet must be numbered consecutively, starting from 1.
Rule 5.14(1)	Numbering of paragraphs	Each paragraph must be numbered consecutively, starting from 1.
Rule 5.14(2)	Content of paragraphs	A paragraph should only address a single topic.
Rule 5.15	Numbers	All numbers must be expressed in figures (0, 1, 2, …) , not words (zero, one, two). So, for example, you should write “2 children” instead of “two children”.
	Compare with form in the High Court Rules	Ensure your document does not differ too much from the PR forms in the High Court Rules 2016, sch 1.
	Grammar, spelling structure and sentences	Ensure that your document is grammatically correct and that it is written in full, coherent sentences. Ensure all words are spelt correctly. Ensure that your document accurately describes what it says it does.
	Notes, choices and fill in the blanks	Ensure that any drafting notes (contained within [square brackets]) are deleted. Ensure that choices (indicated with a * or [square brackets]) are made. Ensure, moreover, that the proper choice is made. Ensure that all fill in the blanks (“[Full Name]”, for example) are filled in. Overall, there should be no square brackets (“[” and “]”) or asterisks (“*”) in the completed document. You can check for any of these characters by pressing Ctrl + F (Windows) or Cmd + F (Mac) while in Word and searching for “[” and then “*”. If there are any results, then you must address them before you can print the document.
	Formatting	Ensure all text is consistent (same size, same regular font). Ensure there are no blank pages or large white space between paragraphs.
Rule 5.10(1)(b)	Space for minute on cover page	However, ensure there is enough space below the description of the document and above the contact information on the cover page to allow the High Court to record a minute.
Rule 5.5	Single side printing	In order to comply with rule 5.5, you must print on a single side only if you are using the documents supplied in this Guide.
Rule 5.3	Paper	Documents must be printed on good quality, medium weight, A4 paper.
Rule 5.7(4)	Fastening	All sheets of a document must be securely fastened (see also Rule 9.77(1)(b), below). For these purposes, you may staple the sheets together in the top left corner.
	Swearing/affirming affidavits	Ensure that everything following a deponent’s name is something they alone can swear/affirm. The point of an affidavit is that you are confirming the truth of the things within it. You are not allowed to swear to/affirm something untrue. If you are unsure about the truth of something, or if you do not understand the thing within the affidavit, you should seek legal advice before signing the affidavit. If you misunderstand something, you should seek legal advice to help you complete the whole process.
Rule 9.76(4)	Initialing affidavits	If your document is an affidavit and is longer than one page (excluding the cover sheet), then it must be initialed by the deponent(s) and the taker (e.g. a Justice of the Peace) on all pages.
Rule 9.77(1)(b)	Annexing exhibits to affidavits	All exhibits (except the will) must be physically annexed to the affidavit. Additionally, ensure all exhibits are marked their corresponding mark as in the affidavit—“A”, “B”, “C”, etc. Each mark should be in alphabetical order both in the affidavit itself and in the order with which the exhibits are annexed.
	Exhibit notes	Ensure all exhibits have an exhibit note attached to it. (A Justice of the Peace can do this for you.)

You can find more about submitting documents to the High Court here (formatting) and here (process). Note that these resources are about commencing claims, not applications for grants of administration, but they might give you an overall feel for the process.

Completing the Administration

Overview

An administrator must complete the following tasks in the following order:

• (1) Handle the deceased’s remains;
• (2) Call in all of the assets;
• (3) Pay the expenses of administration;
• (4) Pay debts;
• (5) Distribute the property to the beneficiaries.

Additionally, you must keep full accounting records as you manage the estate. You must also carefully look after the property in the meantime. This includes arranging for insurance of some assets, such as land.

The following is intended to give you a rough guide as to the administration process. You can and should seek advice about how to properly administer the deceased’s estate by retaining a lawyer for the estate.

Handle the Deceased’s Remains

Formally, it is your role to handle the deceased’s remains.*** If you are not a family member, you might wish to informally delegate this task to the family if the family is in agreement as to what should be done.

The costs for this are an expense that can come out of the property in the estate. If the estate is insolvent, the funeral expenses should be as little as possible.

Call in all Assets and Care for them

You need to find out all of the things that the deceased owned and get a hold of them (in particular, you should make sure all amounts owing to the deceased are paid). Moreover, you should ensure assets are properly cared for, such as ensuring that the deceased’s land is insured.

Pay the Expenses of Administration

The expenses of the administration—including funeral and burial/cremation costs—must be paid.

Pay Debts

You must find out all of the money owing by the deceased to others and pay it.

You must take steps in order to find out what money is owing. These steps might include following up with people it is likely that the deceased owed money to—for example, companies who regularly billed the deceased. You might also put an advertisement in (local) newspapers that the deceased’s executor/administrator is looking to pay any outstanding debts. (See Trusts Act 2019, section 79). In this advertisement, you should state that those coming forward have 30 days to do so.

If it seems that the estate is insolvent (there is insufficient money to cover all of the debts and expenses), you should seek legal advice.

Distribute the Property to the Beneficiaries (as trustee)

Once all other steps have been completed, you must distribute the property to the beneficiaries of the estate according to the instructions in the will or the intestacy rules.*** Specific gifts are to be distributed before the residue because, by its very nature, the residue is everything that is left over once all else is done.

If the instructions (in the will) are unclear, you should seek legal advice. You should do the same if some beneficiaries think the will means one thing and others think the will means another.

Awareness of claims

You should be careful to ensure that no one is going to bring a claim against the estate before you distribute the assets. It is customary to wait six months before distributing any of the estate, but some assets can and should only be distributed after a year provided there are not claims proceeding against the estate.

Trusts

Usually, the executor is also the trustee of the will.

Sometimes a gift is conditional, usually upon the beneficiary attaining an age outlined in the will. In this case, you may hold the assets as trustee for an extended period of time until the beneficiary is of age.

Sometimes, complex trusts are created by the will-maker, in which it is prudent to get advice. All trustees are under strict obligations, primarily located in the Trusts Act 2019.

Information for Beneficiaries

Beneficiaries are interested in the (efficient) administration of the estate and its final distribution. In particular, those beneficiaries who get the residue of the estate are especially interested in the costs of the administration not being too great because it is usually their portion of the estate that is used for the administration costs. Additionally, the beneficiaries will want to ensure that they are receiving their entitlement under the will.

Accessing the will

Usually, you can access the will simply by asking the executor/administrator. If this is not possible, then you might consider accessing the will directly from the High Court for a fee.

Concerns

If you have any concerns over how the executor/administrator/trustee is managing the property of the estate, you should seek legal advice. Disputes often arise over how a will should be interpreted.

Beneficiaries may have a claim against the estate*** if they think that the will-maker did not properly provide for them under the will.