Wills for couples in NZ are essential legal documents that dictate how partners’ assets, including real estate and KiwiSaver, are distributed upon death. Without a valid will, the Administration Act 1969 dictates the division of the estate, which often means a surviving partner does not automatically inherit the entirety of the deceased’s assets, potentially causing financial hardship.
The Critical Importance of Wills for Couples in NZ
For many couples in New Zealand, the assumption that ‘everything goes to my partner’ is a dangerous misconception. Whether you are married, in a civil union, or in a de facto relationship, failing to outline your wishes in a legal will can leave your significant other vulnerable to complex legal battles, frozen assets, and unintended beneficiaries.
Creating a will is not merely an administrative task; it is an act of care. It provides a clear roadmap for the distribution of your estate, which encompasses your family home, bank accounts, investments, vehicles, and KiwiSaver balances. For couples, the stakes are higher because your finances are often intertwined. A comprehensive estate plan ensures that the surviving partner maintains financial stability and that any children involved are cared for according to your joint values.
Furthermore, New Zealand law distinguishes between different types of relationships. While the Property (Relationships) Act 1976 generally treats de facto relationships of three years or longer similarly to marriages, proving the validity of a relationship after death can be stressful without a will. A clear testamentary document removes ambiguity, ensuring that your partner is recognized immediately as the primary beneficiary.
What Happens If You Die Intestate (Without a Will)?
When a person dies without a will in New Zealand, they are said to have died “intestate.” In this scenario, the distribution of your assets is removed from your control and is instead governed by the Administration Act 1969. The outcome is rarely what couples expect and can be financially devastating for the survivor.
The Statutory Formula
It is a common myth that the surviving spouse takes all. If you die intestate and leave behind a spouse or partner and children, the division is strictly formulaic:
- Personal Chattels: The surviving partner receives all personal chattels (furniture, cars, jewelry, etc.).
- Prescribed Amount: The partner receives a statutory legacy, which is currently set at $155,000 (interest may apply).
- The Residue: The remainder of the estate is split. The surviving partner receives one-third, and the children receive two-thirds.
This division can force the sale of the family home if the surviving partner cannot afford to buy out the children’s share. If there are no children but there are living parents, the partner receives the chattels, the $155,000 legacy, and two-thirds of the residue, while the deceased’s parents receive the remaining one-third.
Complexities for De Facto Partners
For de facto couples, the situation is even more precarious. Under the Administration Act, a de facto partner is only entitled to inherit if the relationship has lasted for at least three years. If the relationship was shorter, the surviving partner may receive nothing unless they can prove a “relationship of short duration” resulted in a child or substantial contribution, which requires an application to the court. This creates a period of intense uncertainty during a time of grief.
Mirror Wills Explained: A Solution for Partners
When drafting wills for couples in NZ, the most common approach is the creation of “mirror wills.” These are two separate legal documents that mirror each other in terms of content and wishes.
How Mirror Wills Work
In a standard mirror will arrangement, one partner leaves their entire estate to the other partner, and vice versa. Both wills then name the same back-up beneficiaries (usually the children) to inherit the estate if both partners pass away simultaneously or after the second partner dies. This structure is efficient and ensures consistency in estate planning.
However, it is vital to understand that mirror wills are not binding contracts. Either partner can revoke or change their will at any time without informing the other, provided they have the mental capacity to do so. This flexibility is generally seen as a positive, allowing the surviving partner to adapt to changing life circumstances (such as remarriage or financial shifts) after the first partner’s death.
Mutual Wills vs. Mirror Wills
Couples should be wary of confusing mirror wills with “mutual wills.” A mutual will includes a binding clause that prevents the survivor from changing the will after the first partner dies. While this sounds like a good way to protect children from a previous relationship, it can cause significant problems. It effectively locks the assets, preventing the survivor from downsizing a house or changing beneficiaries even decades later. Most New Zealand lawyers advise against mutual wills due to their rigidity.
Relationship Property and The Survivor’s Election
One of the most complex aspects of estate law in New Zealand is the interaction between the Wills Act and the Property (Relationships) Act 1976 (PRA). Upon the death of a partner, the survivor has a critical choice to make, known as the “Survivor’s Election.”
Option A vs. Option B
The surviving partner must choose one of two options within six months of the grant of administration:
- Option A: Apply for a division of relationship property under the PRA. This usually means the survivor claims half of the relationship property, regardless of what the will says. If they choose Option A, they generally forfeit any gifts left to them in the will unless the will specifically states otherwise (a “contrary intention” clause).
- Option B: Accept what has been left to them under the will (or the intestacy rules if there is no will) and do not make a claim under the PRA.
This election is particularly relevant for blended families or where one partner brought significantly more assets into the relationship. A well-drafted will should acknowledge the PRA and explicitly state whether gifts are intended to be in addition to, or in substitution for, relationship property rights. For authoritative guidance on relationship property division, you can refer to the New Zealand Ministry of Justice guidelines.
Understanding Enduring Power of Attorney (EPA)
While a will protects your family after you die, an Enduring Power of Attorney (EPA) protects you and your partner while you are still alive but unable to make decisions. Wills and EPAs are often created simultaneously as part of a complete legal package for couples.
If you lose mental capacity due to an accident, stroke, or dementia, your partner cannot automatically access your bank accounts or make medical decisions for you. Without an EPA, your partner would have to apply to the Family Court for an order to manage your affairs—a process that is expensive, public, and time-consuming.
Two Types of EPA
In New Zealand, there are two distinct types of EPA:
- EPA for Property: This covers financial assets, bills, and property. You can specify whether this comes into effect immediately (allowing your partner to help with banking while you are mentally capable) or only if you lose mental capacity. You can appoint a professional trustee corporation or your partner as the attorney.
- EPA for Personal Care and Welfare: This covers medical decisions and living arrangements. Unlike the property EPA, this only comes into effect when a medical professional certifies you have lost mental capacity. Crucially, you can only appoint one individual person as your attorney for care and welfare, not a trust company.
For couples, it is standard practice to appoint each other as the primary attorney. However, it is vital to name a successor attorney (such as an adult child or trusted friend) in case your partner is unable to act.
Guardianship and Protecting Minor Children
For couples with children under the age of 18, a will is the only place you can legally appoint a testamentary guardian. A testamentary guardian is someone you choose to make significant decisions about your child’s upbringing if both parents pass away. These decisions include education, health, religion, and residence.
If you do not appoint a guardian in your will, the Family Court will appoint one for you. The court’s choice may not align with your parenting philosophy or family values. By naming guardians in your mirror wills, you ensure continuity of care and peace of mind. It is important to discuss this responsibility with the potential guardians before naming them in your document.
How to Create a Will in New Zealand
There are several avenues for creating wills for couples in NZ, ranging from DIY options to specialist legal services. The right choice depends on the complexity of your asset pool and family structure.
Lawyers and Law Firms
Using a qualified lawyer is the most robust option. They can provide advice on the intricacies of the Property (Relationships) Act, trust structures, and tax implications. This is highly recommended for blended families, business owners, or those with significant assets.
Public Trust and Trustee Corporations
Organisations like Public Trust offer will-writing services. They can also act as the executor of your estate. While convenient, be aware that appointing a professional trustee company as an executor often incurs fees based on a percentage of the estate’s value when you die.
Online Will Platforms
For couples with straightforward affairs (e.g., own a home, have KiwiSaver, want to leave everything to each other), online will platforms are increasingly popular in New Zealand. These tools are cost-effective and guide you through the process. However, ensure the platform is specific to New Zealand law, as overseas templates will not comply with the Wills Act 2007. For more information on the legal requirements of a valid will, consult Community Law Aotearoa.
Frequently Asked Questions
Do my partner and I need separate wills?
Yes, under New Zealand law, every individual must have their own signed and witnessed will. While you can create “mirror wills” that have identical terms, they are two distinct legal documents.
Does marriage automatically void an existing will in NZ?
Yes, entering into a marriage or civil union automatically revokes any existing will unless that will was made specifically “in contemplation” of that marriage. Conversely, divorce does not automatically revoke a will, though it may nullify bequests to the ex-spouse.
Can we use a DIY will kit?
You can use a DIY kit, but it carries risks. If the will is not signed and witnessed correctly (by two independent witnesses present at the same time), it may be invalid. Vague wording can also lead to legal disputes.
What is the cost of a will for a couple in NZ?
Costs vary significantly. Online wills may cost between $80 and $150 per person. A standard lawyer-drafted will for a couple might range from $400 to $800, while complex estate planning involving trusts can cost over $1,500.
What happens to our Joint Tenancy home if one of us dies?
If you own your home as “Joint Tenants,” the property automatically passes to the survivor under the principle of survivorship, bypassing the will. If you own it as “Tenants in Common,” your share passes according to your will.
Who should be the executor of our wills?
Couples often appoint each other as the primary executor. However, you should also appoint a substitute executor (like a trusted family member or a lawyer) to act if you both die together or if the surviving partner is unable to perform the duties.
