A Will Brings Security: A Wake-Up Call for Family Planning

Peter was a kind-hearted grandfather, always with a smile and a story to share — and often a few biscuits saved in his pocket for his grandsons, Jason and Jack.

He lived with his family in a tidy brick house in East Auckland. At 72, he remained sharp-minded and in good health. No one ever thought to ask whether he had prepared a will.

Until one Tuesday morning, when Peter never woke up.

The grief was sudden and profound. But as the family began preparing for the funeral, another harsh reality emerged: Peter had never made a will.

The Trap of “I’ll Get Around to It”

Like many New Zealanders, Peter was practical and hardworking, but did not see making a will as an urgent priority. At 72, he still felt healthy and believed he had plenty of time. Like many people, he associated wills with old age or serious illness, rather than responsible forward planning.

He assumed the law would naturally pass everything to his wife, Pam. What he did not realise was that without a will, the legal process would become complex and costly — especially as Pam’s mental capacity had already begun to decline. In his view, making a will was an “unnecessary expense”; he would rather leave that money for his grandchildren.

To Peter, making a will felt almost like tempting fate. He preferred to focus on the present rather than plan for what came after. He occasionally mentioned his wishes in casual conversation, mistakenly believing that such statements would carry legal weight. Like most people, he kept putting it off.

What Peter also failed to recognise was that Pam’s dementia was worsening. Soon, she might no longer be able to make important decisions. Nor did he expect that his sudden passing would push his family, at their most vulnerable moment, into a complicated legal situation.

When the Law Makes Decisions for You

Without a will, Peter’s estate would be distributed in accordance with the Administration Act 1969. The law does not take into account family dynamics, verbal promises, or special circumstances.

More challenging still, no one could immediately access Peter’s assets or make decisions about the estate — everything required court approval first.

The first blow came quickly: the family discovered they could not access Peter’s bank accounts, even to pay bills or fund Pam’s ongoing care. Before anything could be done, they had to apply to the High Court for Letters of Administration. Meanwhile, as Pam’s dementia progressed, she was no longer legally capable of inheriting or managing the estate, even if the process was expedited.

Peter’s house made up 95% of the estate. Under intestacy rules, it had to be divided equally among the beneficiaries. This meant that regardless of the family’s circumstances — and despite Pam’s need for a stable home — the house would have to be sold. During the lengthy legal process, the family also had to cover ongoing expenses themselves, placing a heavy financial burden on them at an already emotionally difficult time.

A Situation That Could Have Been Avoided

Had Peter made even a simple will while he still had capacity, all of this could have been avoided.

He could have appointed an executor with immediate authority to manage his affairs. He could have made proper arrangements for Pam’s care — ensuring her needs were met while preserving the family home and avoiding a forced sale.

More importantly, Peter could have distributed his assets according to each family member’s circumstances, rather than leaving everything to a rigid legal formula. He could also have made arrangements in advance for potential loss of mental capacity — for both himself and Pam — and documented his reasoning to reduce the risk of disputes. Even simple updates, such as nominating beneficiaries for KiwiSaver and other assets, could have made the entire process far smoother.

The Window of Mental Capacity

Many people overlook a critical point: to make a valid will, you must have clear mental capacity. Once dementia, stroke, or other conditions impair your judgment, it may be too late to put proper legal protections in place.

In fact, the signals to take action often appear earlier than expected. Once you are over 50, you are already in the age group where intestacy issues commonly arise — yet many still believe they are “too young” to worry about making a will. If you own property, savings, or assets such as KiwiSaver, you already have something worth protecting.

If someone in your family is experiencing declining health affecting mental capacity, this is an even stronger warning sign. Cognitive decline may happen gradually or suddenly. If you have ever thought, “I should make a will,” but have not acted, that thought is often the right signal — the best time to act is now, while you are still able to make clear decisions for your family’s future.

To have testamentary capacity, the law generally requires that a person:

• Understands the nature and effect of making a will;

• Has a general understanding of the extent of their assets;

• Recognises those who may have a claim on the estate;

• Understands how the will distributes their assets;

• Is not affected by delusions or false beliefs.

While these requirements may seem straightforward, conditions such as dementia can gradually erode capacity, making it difficult to determine exactly when a person has lost the ability to make legally valid decisions.

Take Action While You Can

Peter’s story plays out every day in New Zealand. Many families only realise too late that well-meaning verbal wishes cannot replace legally valid documents — and by then, it is no longer possible to ask “Peter” what he truly wanted.

The solution is simple: make a will while you are healthy, clear-minded, and able to carefully consider your options. Do not wait for a health crisis or unexpected event to force rushed decisions.

A will is not just about what happens after you are gone — it is about protecting your family’s future while you still have the ability to decide.

Contact Us

As a professional law firm, we understand that every family’s situation is unique. Our team can help you prepare a tailored will and estate plan, ensuring that your family is protected while you still have full capacity to make decisions.

If you are considering making a will, or have any questions about estate planning, please feel free to contact us. We are here to provide practical, reliable, and professional legal support.

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Disclaimer

Information on this site is for general information only and does not constitute legal advice. Please seek independent legal advice for your specific situation.  Use of this site does not create a solicitor-client relationship.