Why have a will?

The importantance of a current will

Many people put off making a Will, almost as if perhaps to do so acknowledges ones own mortality. Let us look for a moment at what happens if you die without a Will.

If you die without a properly made Will, you are said to have died ‘intestate’ and your estate will be settled according to the provisions of an act of Parliament called The Administration Act (“the Act”). So what’s the big deal you might think? Even if I don’t have a Will I’m covered! But let’s take a look at what happens under the provisions of the Act.

If you die intestate your estate is divided in set proportions amongst your surviving spouse, children and/or immediate family. If you have young children, this could prove a problem, with a significant part of your estate tied up in trust until your children are ‘of age’. Almost inevitably the result is that your estate is divided in a manner other than you would have wished. In addition to that, dying intestate will invariably mean that the process of administering your estate will be more drawn out and therefore inevitably more expensive!

On the other hand, if you die with a properly made Will, you have the comfort of knowing that your affairs will be administered in the manner you wished.

When you might need a new will

Your Will is a document that needs to be reviewed from time to time as your circumstances change. There are however certain events which make it absolutely essential to update your Will. For example, if you marry or remarry, your Will is automatically revoked, unless of course it was made in contemplation of that marriage. Likewise, if your marriage is dissolved, your Will should be reviewed.

Information about a living will

A Living Will is basically an ‘advance directive’. Another more commonly known form of advance directive is the Enduring Power of Attorney, with which many readers will be familiar. The enduring power of attorney is a creature of statute, made possible by the Protection of Personal and Property Rights Act 1988. The Living Will on the other hand has no specific statutory status in New Zealand as such.

A Living Will is effectively an advance directive in relation to the course of action that you would like to see taken, in the event of certain health circumstances. Examples of such directives are the desire not to receive medical treatment in certain circumstances, not to receive blood transfusions, not to be resuscitated and so on.

Living Wills are frequently encouraged in the United States by health providers seeking to avoid possible liability arising from carrying out the wishes of a patient. In New Zealand on the other hand, litigation based on medical malpractice has been all but eliminated by the Accident Compensation legislation.

Such legislation as there is dealing with patient’s rights in NZ is effectively found in two places. Firstly, Right 7 of the Code of Health and Disability Consumers Rights deals with “The right to make informed choice and give informed consent” and, at paragraph 5 in particular provides “Every consumer may use an advance directive in accordance with the common law.”

In addition, section 11 of the Bill of Rights Act 1990 provides “Everyone has the right to refuse to undergo medical treatment”

Some fundamental issues arise in relation to the validity of an advance directive. Firstly, the person making the directive must be competent to do so and must not do so under any undue influence. One must also consider whether the person was sufficiently armed with the information required to make an informed decision on the types of medical treatments being requested or refused. Finally, such a directive might be questioned where treatments for a certain condition changes over the years and one might ask if the person was sufficiently informed as to those changes. One possible way around this problem is to state clearly in the Living Will that knowledge of new medical treatments would not have affected the decision.

This information is provided by Brent Selwyn, Harmans Lawyers, Solicitors. February 2009. http://www.harman.co.nz