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In today’s evolving financial and legal landscape, having a valid Will in place has never been more critical for New Zealanders. The absence of a Will can lead to unnecessary delays, stress, and cost for families. One of the most overlooked reasons to have a Will is KiwiSaver. Many people assume their KiwiSaver balance will automatically pass to their partner or next of kin on death, but that’s not how it works. KiwiSaver funds are held solely in the name of the individual and do not pass by survivorship (think, property held as joint tenants). Instead, they must be dealt with as part of the person’s estate, and if there is no Will, this creates delays and uncertainty in accessing those funds. With the recent Government budget injecting more incentives and support into KiwiSaver, balances are likely to grow significantly over time. Another relevant factor is the probate threshold. Currently, assets over $15,000 will require a grant from the Court. This threshold is due to increase to $40,000 in the September 2025 to better reflect current asset values. In real terms, the threshold is easily exceeded - especially when you consider KiwiSaver. Without a Will, for which the Court can grant “probate”, family members must apply for “letters of administration” which can be slower and more complex, particularly when family dynamics are tense. At the same time, more New Zealanders are choosing to own property as tenants in common rather than joint tenants - especially in blended families or where people wish to protect their children’s inheritance from a new partner. This structure allows each party to leave their share of the property to whomever they choose, provided they have a Will to specify that. In this situation, a Will should complement any Contracting Out Agreement (or “Pre Nup”). Many family trusts are now being wound up or simplified due to changes in trust law, compliance costs, aging/migrating settlors and international beneficiaries (giving rise to tax implications). As assets come out of a trust and revert to personal ownership, they become part of a person’s estate and must be carefully dealt with by their Will. Overseas properties, investments and digital assets can be challenging to deal with if someone passes without a Will (or Wills) to reflect what should happen to assets in other countries. Having a Will is no longer just about passing on the family home - it’s about ensuring some thought is given to the increasing complex assets and arrangements of the modern estate.   With the right guidance, a complicated situation can have a clear and manageable solution. The key is to decide what you want to achieve, and get a Will drafted to reflect that. Holland Beckett’s specialist succession and estates team provide expert advice on succession planning and can help to create a Will that best reflects your individual situation. This article was first published in the New Zealand Herald and Bay of Plenty Times, July 2025.

When a company director signs an agreement on behalf of a company they may also be required to sign a personal guarantee, this means they are accepting personal liability for the obligations of the company. Personal guarantees are common in several types of agreements, for example leases, supply/trade agreements, or loans. They provide additional security for lenders, allowing lenders to bypass a company when there is a breach of the agreement and look to the assets of the guarantor. However, in certain circumstances a personal guarantee may not be enforceable, including when a director has only signed an agreement once, in their capacity as a company director, and not in a “dual” capacity. Where there is only one signature on an agreement, there is a presumption that a person who signs once is signing as an agent of the company – and not in their personal capacity. To hold that person liable as a guarantor, it must be shown that the person signed in a dual capacity: this means that they signed on behalf of the company and in their personal capacity. Factors in Determining Dual Capacity 1. Whether a person has signed an agreement in a dual capacity is circumstantial, however there are factors that assist with determining whether a person has signed in a dual capacity. These include: The structure of an agreement is an indicator of whether a director has signed in a dual capacity. Typically where there is a guarantee, an agreement will identify the contract’s parties – which will include the lender, the company (for example as borrower/principal debtor) and the guarantor. If the guarantor is not a listed party to the agreement this may indicate that the director did not sign in a dual capacity and is therefore not bound by any personal guarantee clauses within the agreement. The description of the signatory is another factor – however, this is not a straightforward indication as to whether a person has signed in a dual capacity.  If the person is listed merely as a “Director,” this typically suggests the signature was made only on behalf of the company. That said, context is important, and “Director” may also be used to describe someone who happens to be bound as a guarantor. The wording of the clause is also a key indication as to whether the guarantee is effective. If the clause includes clear acknowledgements by the guarantor, for example, inserting their name in the clause and/or an express acknowledgement that by signing the agreement they are accepting personal liability as a guarantor, can support enforcement. A guarantee clause may reference a separate document. Overall, the clauses should be read carefully as they may merely be an agreement to obtain the personal guarantee in the future in a separate document. While potentially more difficult to prove, evidence that the personal guarantee clause was explained to the individual prior to signing can support the argument that the individual understood and accepted the dual role. Oral or written statements may be used to demonstrate this, however the main issue with this comes down to evidence. 2. Whether a director has signed in a dual capacity can be a complex issue when there is not a separate signature section. These sorts of issues are unlikely to arise in modern agreements, but may still arise in older ongoing agreements where there is less clarity. Clarity is Key Determining whether a personal guarantee is enforceable when there is only one signature is a fact specific exercise – the language of the clause, the entire agreement and the circumstances need to be considered. A personal guarantee clause may be insufficient on its own to make a director or shareholder personally liable for company debts. For such a clause to be enforceable against an individual, the individual should sign the agreement twice (once in their capacity as director of the company and again in their capacity as a personal guarantor) or the agreement should be clear that an individual has signed in a dual capacity. To avoid any issues, clarity is key. Agreements should be clear when a director or shareholder is committing themselves personally, not just on behalf of the company.

In a recent decision, the Employment Court has ruled in favour of High Performance Sport New Zealand (HPSNZ), overturning a decision made by the Employment Relations Authority in January 2024. In its initial ruling, the Authority had determined that HPSNZ was required to engage in collective bargaining with The Athletes Cooperative (TAC), a union representing both the individual and collective interests of its athlete members.[1] The Court heard evidence from a number of current and former athletes, including several who have represented New Zealand at international events.[2] Their evidence highlighted deficiencies in the current funding system, particularly the lack of employment protections for athletes and the insufficient prioritisation of their interests and well-being.[3] The key legal dispute centred on the circumstances in which a union may validly initiate collective bargaining with an employer in accordance with s 40 of the Employment Relations Act 2000 (the Act).[4]  The Court ruled that for a union to validly initiate bargaining, it must be in an employment relationship with an employer.[5] Based on the context and purpose of s 40, the Court determined that such an employment relationship can only exist when members of the union are employed by the employer.[6] The Court referred to the Supreme Court’s decision in AFFCO[7] where the word “employees” was held to have a broader meaning than in s 6 of the Act and covers persons seeking employment in some situations where those persons are not strangers to the employer in contractual terms.  While TAC is a registered union and HPSNZ is an employer, the Court found that TAC’s members were not “sufficiently connected” to HPSNZ in a way that would establish an employment relationship for the purposes of s 40. It clarified that HPSNZ deals directly with the National Sporting Organisations and not the athletes directly and as such any reference to HPSNZ in the athletes’ agreements is limited only to funding and not an employment relationship.[8] The Court’s decision clarifies the legal criteria for applying s 40 and the circumstances under which a union can validly initiate collective bargaining with an employer. TAC has sought leave to appeal the decision to the Court of Appeal.[9] As a further comment, the decision highlights the complexities of the relationship between HPSNZ, National Sporting Organisations and athletes in elite programs, in particular the application of funding and employment protections afforded to athletes. The final outcome of this matter will no doubt have a significant impact on the landscape of the New Zealand sports environment. _____ [1] The Athletes’ Cooperative Inc v High Performance Sport New Zealand Ltd [2024] NZERA 43 (Member Anderson). [2] High Performance Sport New Zealand Ltd v The Athletes’ Cooperative Inc [2024] NZEmpC 250 at [41]. [3] At [42]. [4] At [1]. [5] At [88]. [6] At [88]. [7]  AFFCO New Zealand Ltd v New Zealand Meat Workers and Related Trades Union Inc [2017] NZSC 135, [2018] 1 NZLR 212 at [75]. [8] n 2 at [89]. [9] Dana Johannsen “Athlete union’s legal bid for collective bargaining with High Performance Sport NZ overturned” (16 January 2025) Radio New Zealand <www.rnz.co.nz>.