In  this the second of the series of Articles taken from David’s paper (Will your will work well”) David describes and explains various types of Wills

Under our will we appoint executors (who become trustees if administration of our estate goes beyond the “executors year”) to get in our assets, deal with our liabilities and distribute our estate according to our wishes – holding certain assets as trustees if the entitlement to them is postponed.

The types of wills include:

  • Wills in contemplation of marriage.  Any will is revoked by marriage.  However, because newly weds might not be focussed on the need to make new wills immediately after their wedding, the law provides for them to make their wills prior to marriage.  Any will that is expressed to be in contemplation of marriage to a certain person will not be revoked by the will makers marriage to that person.
  • Mutual wills.  These are rare but they have their place.  Here each will maker benefits the other and agreed beneficiaries in reliance on the other will maker not changing their will without joint agreement.  Because it takes away testamentary freedom (the right to revoke your will by making another) I have never been confident that a mutual will can “stick”.  However, I am sure they have their place.
  • Wills creating legacies, bequests, donating organs, directing cremation/burial, imposing conditions on inheritances such as age, marital status etc. 
  • Wills creating life/widowhood interests.  These provisions give limited rights until the beneficiary dies or remarries.  The Death Certificate or Marriage Certificate evidences the end of the interest. 
  • Wills creating rights of occupation.  These are common for blended families and in de facto relationships.  The danger with them is how to determine when the right ends.  Often it is left to the trustees to determine whether the beneficiary is in a new relationship (how many days/weeks residence, toothbrush test, holidays) so if the trustees are the surviving partner and a child from the first relationship (who is to benefit when the right ceases) then there is a conflict and often an argument as to when the right has ceased.
  • Hotchpot provisions.  These take into account gifts/loans (other than small amounts for Christmas, birthdays etc) made by the will maker during his/her lifetime.  Such gifts and loans are taken into account prior to distribution of the deceased’s estate to even out the entitlement of the beneficiaries.

David has been involved with the Beginning Experience Auckland team http://www.beginningexperience.org.nz/  for some years. 

The purpose of the Beginning Experience ministry is to help divorced, separated and widowed men and women and their children of divorce, parental separation and death to heal the grief of their loss, to help them with the suffering of their separation.

For the first time in 6 years New Zealand hosted an International Conference in Auckland in November, with delegates from Australia, United States, Wales, Ireland, Singapore and NZ. David was invited to present a paper on the New Zealand position regarding key aspects of Wills. 

This paper “Will your will work well?  (Will your assets at your death end up going to those you want to benefit?)”  was very well received by attendees so we decided to serialise it in our website over 6 months. The first article covers Powers of Attorney. We hope you find this and future articles in the series helpful.  

 

POWERS OF ATTORNEY

Many of my clients assume that, having made their wills, then if they lose capacity during their lifetimes, the trustees they have appointed under their wills are able to take care of things.

That is not the case.

A will can only speak when we die.

During our lifetimes we need to give powers of attorney if we want anyone to look after matters for us.

A power of attorney gives the attorney the authority to do whatever we would be able to do if we were present. 

However, the attorney’s capacity is only as good as the capacity of the donor.

That means if we have a power of attorney and “lose our marbles” then the attorney can’t do anything for us.

This situation has been addressed by the creation of enduring powers of attorney.  They are creatures of statute.

Once the (now rather onerous) requirements for setting up enduring powers of attorney have been met, then the attorney can represent us even if we later become unable to work out things for ourselves.

Any power of attorney can be revoked – so long as the donor has capacity.

All powers of attorney are revoked on death.

There is an advantage in appointing as attorneys the same people as you appoint as trustees of your will.  That means a seamless arrangement after your death if your affairs have had to be handled by your attorneys while you are living.  It also means that the attorneys (especially if they are family members) are alert to the accountability to beneficiaries when you die.

That removes the attorneys focus from themselves if there is any element of self interest conflicting with your interests or the wider interests of your family.