Estate Administration

If a Will is technically valid, the mere circumstances in which it is prepared makes the Will more vulnerable to challenge. The rule known as the “golden rule” is a measure of what might be considered best practice for lawyers in the preparation and execution of a Will. While the “golden rule” is not a rigid rule of law, it has been repeatedly emphasised by the Courts as a desirable approach for lawyers to take. The substance of the golden rule is that when a solicitor is instructed to prepare a Will for an elderly Will-maker, or for one who has been seriously ill or is making a significant change from a previous Will or conventional norms, the lawyer should arrange for a medical practitioner to prepare a medical certificate confirming whether they have the capacity and understanding needed to make a Will. The capacity certificate should be kept on file. A lawyer should also ensure they take clear file notes recording the Will-maker’s intentions and the explanation for any significant changes to the Will. Compliance with the “golden rule” does not make a Will invalid. Its purpose, as has been repeatedly emphasised by the Courts, is to assist in the avoidance or minimisation of disputes. This decision highlights the importance of clear file notes recording the Will-maker’s wishes and the need for a contemporaneous assessment of testamentary capacity. While capacity is not a determinative factor in the assessment of undue influence, the lack of acknowledgement or consideration of this issue will result in criticism from the Court. Where adequate records are not kept, the determination of a later Will challenge with respect to capacity and undue influence can be compromised. In particular, the Court may find that there is an information vacuum such that it is not possible to determine capacity or that the transaction was the result of the free exercise of an independent will of the Will-maker. Accordingly, adverse inferences may be drawn in relation to any significant change made by the Will-maker and the basis for said change. This was highlighted in a recent Court of Appeal case Gorringe v Pointon [2023] NZCA 42. This appeal concerned allegations of undue influence in relation to two Wills made by the deceased. In particular, the Court criticised the lack of adequate reasoning and evidence provided by the firm who prepared and executed these Wills. The legal executive who prepared and executed the Wills was significantly criticised for failing to follow the “golden rule”. The Court observed that: The lack of consideration given to capacity, given the Will-makers advanced age of 97 years, was surprising and remiss. The apparent lack or adequate oversight or supervision from a qualified lawyer was regrettable. The interactions with the Will-maker were notably slim as evidenced by time recording. There was insufficient probing of the Will-maker’s intentions and scant file noting of the instructions and the execution process. When cross-examined during hearing, Ms Hopkins sought to extrapolate from the circumstances to proffer an opinion on why the Will-maker changed her Will. However, there was no note of this information in the evidence which undermined its credibility. In this case, the failure to comply with the \"golden rule” greatly increased the difficulties to which this dispute had given rise and aggravated the depths of mistrust the deceased’s family had. Overall, preparing a Will can be difficult and constrained by the client’s expectation that any instruction should be dealt with efficiently and at low cost. However, it is important that careful consideration is given to all potential beneficiaries and ensuring that no-one attempts to unduly influence the views of the Will-maker. If these points are addressed, along with any issue of capacity, the Will should stand up to scrutiny in the event of a dispute. Talk to our Estate Planning Team about Wills.

Ideally, a Will is prepared with a lawyer after careful consideration. Someone facing imminent death or decline may want to urgently prepare a new Will or update their current Will. These Wills are often referred to as deathbed Wills, last minute Wills or bedside Wills. These Wills are valid if executed properly. Technical RequirementsFor a Will to be valid it must meet the requirements in s11 of the Wills Act 2007 (“the Act”): The Will must be in writing; The Will-maker must sign the Will (or direct another person to sign on their behalf in their presence) in the presence of two independent adult witnesses; The witnesses must then sign the Will confirming they were present when the Will-maker signed the Will. The Will-maker must have also intended to make a Will. It is relatively common for last minute Will-makers to use family members to witness their Will, often because they are immediately available at the time. However, this can invalidate the Will or a gift within the Will if a witness is a beneficiary or the partner of a beneficiary. If a Will does not meet the validity requirements, the Court can declare a Will valid under s14 of the Act. However, this can be an expensive and time consuming process, particularly if there is a dispute amongst beneficiaries. Grounds for ChallengeIf the Will is technically valid, the mere circumstances in which it is prepared makes the Will more vulnerable to challenge. This includes if the terms of the Will differ considerably from the terms of a previous Will or, where there is no previous Will, from the laws of intestacy. The more significant the changes from a previous Will or conventional norms, then the greater likelihood that consideration must be given to the issue of capacity or undue influence. For example, leaving an estate to an acquaintance or neighbour rather than the Will-maker’s children would be considered a significant change. Challenges on the Basis of Incapacity A Will-maker must have testamentary capacity at the time of making the Will. Illness and strong medications can impact a person\'s ability to understand the nature and effect of their Will. If there are any doubts as to capacity, this makes the Will vulnerable to challenge on the basis of incapacity. The test for capacity was established in Banks v Goodfellow. At the time of signing the Will, the Will maker must: Understand they are making a Will and the effect of doing so; Understand the extent of their property being dealt with under the Will; and Appreciate moral claims which they ought to give effect to. If a person is making a last minute Will, a doctor’s certificate confirming the Will-maker’s capacity and a lawyer’s file note will minimise the risk of a challenge. Challenges on the Basis of Undue InfluenceWhere a Will makes a drastic departure from previous Wills or the rules of intestacy prior to death, questions of undue influence arise. This refers to a situation where someone has coerced or applied pressure to get a Will-maker to sign a Will. Undue influence affects whether a Will is valid or not. A person alleging undue influence must establish that the alleged influence led to the Will and that the terms of the Will were not the result of the Will-maker’s own free judgment. Preparing your WillIdeally, you should prepare your Will when you are fit and healthy. If you or your loved one are making a last minute Will, we strongly recommend engaging a lawyer to ensure the Will is valid and practical. This will provide certainty for you and your loved ones.

It is important to have Enduring Powers of Attorney (“EPOAs”) in place so that if an unexpected medical event happens the right people can look after you. If you lose your mental capacity and do not have EPOAs in place, it can be a costly, time-consuming and stressful process for your loved ones to legally have the right to look after you. The Protection of Personal and Property Rights Act 1988 (“PPPR Act”) provides what happens when a person loses their capacity to manage their personal and property affairs (both when they have EPOAs in place and when they don’t). EPOAEPOAs are legal documents that set out who can take care of your personal or property matters if you are unable to (for example, if you have a stroke, are in a coma or have a cognitive disorder). The person you appoint to look after you is called your “attorney”. There are two kinds of EPOA; property and personal care and welfare. To be valid, the Enduring Power of Attorney must be advised on by a lawyer or registered legal executive while you have medical capacity. PropertyThe Property EPOA gives your attorney power to make decisions in relation to your money and property, such as the sale of a home or payment of your bills. You can choose whether your property attorney can act immediately (while you have capacity) or only if you lose capacity. The Property EPOA (or PPPR order – more below), can appoint one or more attorneys or a trustee corporation. You can also require your attorneys consult with or provide information to certain people. Personal care and welfareThe Personal Care and Welfare EPOA gives your attorney the power to make decisions relating to your health and welfare, such as choosing a rest home, your level of care or medical treatment. The Personal Care and Welfare EPOA can only come into effect if a doctor certifies you have lost capacity and are unable to make your own decisions. The Personal Care and Welfare EPOA (or PPPR order) can only appoint one individual at a time to make decisions on your behalf. However, you can appoint successor attorneys and/or require that the first attorney consult with other people when making a decision. PPPR Act ordersIf EPOA are not in place when someone loses capacity, an application must be made to the Family Court to appoint someone to make decisions on your behalf. These documents can also be organised through a lawyer, but this process takes place once you have lost capacity. You therefore have less control over who is appointed. Whilst every effort is made to appoint a suitable person, it may not be exactly who you would have intended to appoint given it is not a decision in your control any longer. Why should I enact EPOA?Arranging for someone to be able to make decisions on your behalf by drafting EPOAs is a cheaper and more simple process where you are in complete control over who is appointed and what activities the appointed person can complete on your behalf, such as making gifts to family members or charity. If you lose capacity before you have EPOA in place, it is likely that someone will need to be appointed as your property manager and welfare guardian. This is so that they can enter contracts on your behalf, such as for you to be cared for in a rest home or to sell your property to help meet your care expenses and make decisions about your medical care when you are not in a position to do so yourself. Rest homes will not accept you into care if no EPOAs or PPPR Act orders are in place. PPPR Act orders processThe process for applying to be a property manager or welfare guardian includes a medical assessment being conducted, the drafting of applications, affidavits and consent documents, seeking consent from interested parties, filing all documents in court, service of documents on interested parties, a lawyer for subject person being appointed and assessing the subject person, and court approval of the person to be appointed. If the appointed person is disputed, there may also need to be a court hearing. Further, once someone has been appointed to be your property manager and welfare guardian, that person must file a statement of assets and liabilities with the Court each year, and the orders need to be reviewed by the court – initially every three years, but the court may then decide that every five years is acceptable. A lawyer can assist the appointed person with this process if required, however this is likely to be at a cost to you personally. A record of income and outgoings must be kept, with any money spent for the benefit of the protected person only – not the appointed person. Public Trust conducts reviews of this. PPPR Act orders cease on death, bankruptcy and if the protected person regains capacity – although in most cases this is not likely to occur if the incapacity is due to dementia or permanent disability. At a time when you have recently lost capacity and your family needs to ensure that you are cared for appropriately, it is far simpler if you have signed EPOA which can then come into effect immediately. If you have not entered into EPOA then your family can be put in the position of having to go through the Family Court process to obtain welfare guardian and property manager orders as described above. This process takes time and effort which both increase cost. This can also mean there is a hold up in important decisions being able to be made, as it generally takes several months to work through the Court process before orders for appointment as welfare guardian/property manager take effect. It is significantly quicker and less expensive to enter into EPOAs when you have capacity, than for your family members to have to seek PPPR orders once capacity has been lost. ConclusionJust like Wills, EPOAs are important documents to draft whilst you have capacity. Having documents like these in place will save your family time, cost and stress if you lose capacity and they need to get the Family Court involved to look after your personal care and welfare, and property matters. It will ensure that the people you trust and want to take care of these roles are in position to act immediately should they need to. If you have any queries, would like to prepare EPOAs or need to apply for PPPR Act orders, please reach out to us at Holland Beckett Law.

In a typical family situation it is common for a couple to leave their entire estate to each other, and for their Wills to provide that after they have both died the family estate will go to their children. This is commonly known as a mirror Will. What if, however, you have children from a previous relationship? You may want to provide for your children in your Will, but also wish to make sure your new partner is looked after. A mirror Will is one option. However, these Wills do not create a legally binding agreement between couples. Either spouse or partner is therefore free to change their Will at any time during their lifetime. While a couple may be comfortable relying on their new partner to provide for their respective children in the surviving spouse or partner’s Will, these Wills frequently result in claims against the estate made by the deceased spouse or partner’s children from a previous relationship. To help avoid such claims and to offer peace of mind, a life interest Will may provide the answer. What is a life interest? In your Will you can grant to somebody a life interest in an asset. This will give that person the right to use that asset for the rest of their life. On their death, the asset will pass to the people named in your Will. A life interest can be a good way to provide for dependents while still ensuring the asset will go the named beneficiaries. A common example is where a person provides a life interest in the family home to a spouse or partner, and once their spouse or partner dies the family home will pass to the Will-maker’s children. Often the couple will own the family home in equal shares. This allows each of them to deal with their 1/2 share in their Will in the way they choose. A person may also provide a life interest in other assets such as funds in a bank account, shares or other investments. As an example, the person’s spouse or partner will have the use of the income generated by such assets during their lifetime, after which the capital remaining can be distributed to the Will-maker’s children. A life interest Will provides a basic level of asset protection. Any assets subject to a life interest will be held by the trustees appointed in the Will and do not legally belong to the person with the benefit of the life interest (such as the surviving spouse or partner). It can therefore provide peace of mind to the Will-maker that all of their loved ones will be looked after. On the other hand, a life interest can be restrictive for the surviving spouse or partner. The surviving spouse or partner effectively loses control over assets that they may have considered to be theirs if they were used by the couple to benefit both of them. Any dealings with the asset will require the trustees of the Will to consent, and will be subject to the terms of the life interest in the Will. A life interest Will can also mean the children may not see their inheritance for many years. Holland Beckett Law is here to discuss your particular circumstances to determine if a life interest Will is right for you.

Online Tools We provide an obligation free online tool to provide you with further information based on your specific circumstances. Relationship Property Agreement or Contracting Out Agreement (Pre Nup) Click here to get started Will Preparation Click here to get started Estate Administration Click here to get started How to avoid disinheriting your children without leaving your new partner high and dry. If you have children from a prior relationship and a new partner it is important your Will balances the needs of your partner and children and each of their potential claims against your estate. Family Protection Act 1955 obligations Under the Family Protection Act, a person has a moral obligation to adequately provide for certain people in their Will. These people include partners, children and grandchildren. What is adequate depends on the circumstances, such as the size of the estate, the individuals needs and the needs of the other beneficiaries. While you have a moral obligation to provide for your children in your Will, your partner usually does not have a moral obligation to provide for your children in their Will, unless they are minor or dependents when you pass. If your Will leaves everything to your partner then: If your children make a claim against your estate – they have a good chance of success as they have been left out of your Will. A claim is stressful for all involved, diminishes the value of your estate and can be detrimental to relationships; and If your children do not make a claim against the estate – they might be left something in your partner’s Will, but your partner could later change their Will to exclude your children and your children would not be entitled to make a claim against their estate. Property (Relationships) Act 1976 Unless a valid Contracting Out Agreement or Relationship Agreement is in place, a surviving partner has the right to choose whether to (A) make an application to the Court to divide the estate in accordance with their relationship property entitlement or (B) accept their gift under the Will. It is important to understand that your assets are not just at risk in the event of separation, but also on death. For this reason, it is important to have relationship property advice to ensure your wishes are honoured on separation or death. Possible Will structures Here are three common Will structures for second or subsequent relationships. 1. Mirror Wills You and your new partner create Wills leaving all assets to each other in exchange for a mutual promise that when you both pass your assets will be distributed in a certain way (for example, 50% to your children and 50% to your partners children). This creates a binding obligation on the survivor not to change the ultimate beneficiaries of their Will. The Wills can be updated provided you both agree during your lifetimes. At its best, this structure gives the survivor a comfortable lifestyle while providing your children with reassurance that they will be provided for in the end. There are some difficulties with this including: Disgruntled children may still make a claim under the Family Protection Act. Speaking with your children about your Will can be helpful as it manages their expectations and prevents the feeling of a nasty surprise when you pass. Alternatively, you can make all of your assets joint in an effort to prevent a claim – as joint assets pass automatically to the survivor, making it much harder to make a claim. While the survivor might not change their Will, the assets may be depleted during their lifetime so that your children receive a much lesser amount than you intended. 2. Early gift to children and residue to spouse Your Will can leave a gift to your children (such as your Kiwisaver, a cash gift, a percentage of your estate or a life insurance policy) and the residue to your partner. This ensures your children receive something now while your partner still receives enough to comfortably live on. If desired, you can use a combination of an early gift and mutual Wills so that your children receive something now and when you both pass. 3. Life interest Wills This is perhaps the most certain way to provide for your partner during their lifetime and your children when both you and your partner pass. Usually a life interest Will allows the survivor to live in a property (or substitute residence) for the rest of their lives on the basis they pay for outgoings. A life interest can also be over the whole estate, so that the survivor can live off any income generated from other assets (such as the proceeds of any bank accounts and investments). This can also be beneficial for the survivor if they go into residential or hospital level care, as it will reduce the assets they own in their own name. A life interest Will can be beneficial, but can also add cost and complication. A life interest creates a Trust and, for the rest of the survivor’s life there would be trustees involved in key decision making (such as selling and buying a new residence) and possibly ongoing tax returns for the estate. Speak to a professional If you have children from a prior relationship and a new partner, we can help you plan for the future in a way that protects all the people you love.

If you feel like you haven’t been properly provided for by a close family member or friend, you are able to apply to the Court for this to be changed. This can be done in a number of ways, but the two main laws are the Family Protection Act 1955 (FPA) and the Law Reform (Testamentary Promises) Act 1949 (TPA). Who is eligible to make a claim? Under the FPA, spouses, civil union partners and de facto partners of the deceased are all eligible to claim. Children, grandchildren and step children who were being wholly or partly supported are also able to claim. Parents of the deceased are only able to claim in limited circumstances. Under the TPA, any person who has been promised provision under the will can make a claim. However, claims usually come from relations not provided for under the FPA, or close family friends. Is there a time limit on making a claim? Under both the FPA and the TPA, you have 12 months to lodge a claim. However, we recommend that you file a claim as soon as possible to make sure that all of the Estate assets are available. How can I claim under the FPA? The FPA gives specified family members the right to apply for provision out of a family member’s estate. The purpose is to ensure that family members receive their fair share of an estate and are adequately provided for by the deceased. This is because the FPA creates a moral duty, for example from a parent to a child. If you make a claim, the Court will consider whether adequate and proper provision has been made for your maintenance and support. This means the Court will consider factors such as the relationship between you and the deceased, the size of the estate, your financial need, and any ethical elements such as your right to feel a sense of belonging to the family.. A claimant in need (whether financial or otherwise) will have a stronger claim. How can I claim under the TPA? Under this Act you will need to prove that the deceased made you an “express” or “implied” promise of reward for the work you did. If this is proven, then the estate will have an obligation to make a reasonable award to you. To succeed in a claim under the TPA, a person must show that: Services or work were rendered by you to the deceased in the deceased’s lifetime; There was a promise from the deceased to you in reward for the services; There is a connection between the services rendered and the promise; and The deceased failed to make the promised testamentary provision or otherwise remunerate you. The term “services” essentially means work. It has been given a broad definition by the Courts, and includes physical work and even emotional support where it goes above and beyond what would usually be expected. A “promise” means any statement or representation of fact or intention. The promise can be expressly made, or it can be implied. Unfortunately, these sorts of claims can be difficult to prove. If there is information to support a promise being made (ie. some evidence in writing), or other witnesses who heard the promise being made, this will help with proving the claim. The Law Commission has recently reviewed succession law, and has recommended a new Inheritance Act to replace these Acts. This reform is expected to take several years, so it will be some time before we see any changes. There are a few things to think about in relation to your Will.  Try our Will questionnaire here, and one of our Estate Planning Team will be in touch.

We provide an obligation free online tool to provide you with further information based on your specific circumstances. Click here to get started A well drafted Will reduces the time, money and stress of administering your estate when you pass. At Holland Beckett Law, we take the time to ensure that your Will suits your circumstances, while keeping it simple. Below are our top 5 tips to ensure that your Will is fit for purpose. 1. Choose the right executors and trustees of your Will The executors and trustees (“Trustees”) carry out the terms of your Will. Trustees must be neutral between the beneficiaries (not biased) and make decisions together. We recommend that you pick two Trustees who live in New Zealand, can work well together and are neutral towards your beneficiaries. This will help to make the administration of your estate straightforward and cost effective. Where possible at least one Trustee should be younger than you, as it can complicate matters if your Trustee(s) have already passed away before you. If your Will is complex or you think that there may be a dispute in the family after you die, then you could consider appointing an independent professional as your Trustee. 2. Dealing with personal items When it comes to distributing personal items there are typically two options. The first, is to leave everything to a person or group of people and let them sort it out. The second, is to list what you want to do with each valuable or sentimental item. If you prefer the second option, rather than listing each item in your Will, you can leave your personal items to your Trustees to distribute in accordance with any wishes you make known to them. You can then make a list which can be updated at any time, without the hassle and expense of updating your Will. The list should be kept in your lawyer’s deed safe with your Will. 3. Cash or percentage gifts We recommend that you do not leave a cash gift in your Will. This is because, over time, circumstances can change and that gift may become a much larger or much smaller portion of your estate than you intended. Instead consider leaving a percentage of your estate. For example, instead of giving $10,000 to each of your grandchildren you could consider giving 10% of your estate equally to your grandchildren. This means the gift will increase/decrease proportionately. 4. Understand how your property is owned If you are leaving everything to your partner, check to see if your property is jointly owned. Jointly owned property (property ownership as joint tenants) passes automatically to the survivor, which makes for a quick and hassle free process. Any asset over $15,000 requires an application for probate (Court authority) to deal with that asset. Check how your insurance policies are owned. If you own the policy, your estate will likely need to apply for probate and the proceeds will be distributed in accordance with the terms of your Will. If the policy is jointly owned, or owned by someone else, then that person may be able to access the policy straight away. If in your Will you leave your partner a life interest to live in a property, that property should be owned as tenants in common (where you each own a share). 5. Understand your debts If you want to leave a vehicle or property to a beneficiary that is under finance, consider how the debt will be repaid - does your estate have enough to repay the debt? Are you giving that particular property to the beneficiary on the condition they take on the debt? Unfortunately, even the most carefully crafted Will can become impractical or even void if your circumstances change. While we try to plan for this with our Will drafting, if you have any major change in circumstance - such as a birth, death, marriage, separation, divorce or a family member moving overseas – you should have your Will reviewed and potentially updated. There are a few things to think about in relation to your Will.  Try our Will questionnaire here, and one of our team will be in touch. Holland Beckett Law can assist with preparing your Will or reviewing an existing one. If you have any queries please reach out to a member of our team.

Dealing with a loved one’s passing is a difficult time. At Holland Beckett Law, we aim to make the estate administration process as simple as possible. In this article we explain, in plain English some of the common legal jargon that you might encounter in the estate’s administration process. Affidavit: A sworn statement for the purpose of being filed in Court. Bequest: A gift made by a person in their Will. Beneficiary/Cestui que trust: A person with an interest/entitlement under a Trust or Will. Capacity: Legal competence to enter into a legally enforceable arrangement. Those who are under 18 do not have legal capacity. There are some exceptions, for example an attorney under the Protection of Personal and Property Rights Act 1988 must be at least 20 years of age. Codicil: A document which adds to or makes changes to a Will. Common form: The standard form of application for probate which is not contested or opposed in any way. Devise: A gift of land in a Will. Disclaim/Renounce: To relinquish/refuse a legal claim to something. For example, an executor may renounce as executor which means they step down from their role and a beneficiary may disclaim/reject a gift made to them under a Will. Estate: Everything that a person owns in their own name at the date of their death. Execution: The act of signing a document in a way required by law. This also includes requirements for the document to be witnessed. Executor: An executor is the person who is appointed by the Will-maker to administer the estate. Issue: All of a person’s descendants (children, grandchildren etc). Intestate: When a person dies without a Will. Legacy: A gift in a Will, usually money. Letters of Administration: An application for administration of an estate where a person has died without a Will. Alternatively, there can be an application for letters of administration where there is a Will but the executor named in the Will has died or for whatever reason, will not apply for probate. Life interest: A grant of the right to use all or part of the estate for the remainder of that person’s lifetime. For example, a Will-maker might leave a beneficiary the right to live in their property for the rest of their lives. Probate: The application to prove or verify a person’s Will and obtain Court authority to act as executor. Residuary beneficiary: A person who will receive a benefit from the remainder of an estate after specific gifts, debts and expenses have been paid. Residuary estate: What remains of an estate after specific gifts, debts and expenses have been provided for. Solemn form: Where probate of a Will is opposed or there is doubt whether probate should be granted. It then involves a hearing before a Judge. Testamentary: Arising under a Will. For example, a testamentary trust is a trust arising under a Will. Testamentary capacity: Competence to make a Will. A Will-maker must be of sound mind. Testator/Testatrix: The male and female words for a Will-maker. It is now more common to simply refer to the person as the Will-maker. Whilst some of the legal jargon is part of the process, we make sure our clients understand the steps in the estate administration process in a plain and simple way, to ensure they understand what is required from them at such a difficult time. If you would like advice regarding an estate, or estate planning our specialist team is here to help.

Married? Separated? Somewhere in between? Your relationship status changes the validity, or otherwise, of your Will. So too does the death of a former partner. Read on to find out what you need to do, and when, to ensure you protect your assets. Defacto Entering into a new relationship (not formalised by marriage) does not have any effect on your Will. However, over time your partner may develop rights to some of your assets. If you have a Will that does not acknowledge your defacto partner, this could be challenged after your death. Updating your Will (along with considering appropriate relationship property arrangements), is sensible whether you decide to get married or not. Marriage or Civil Union The law assumes that any Will you make prior to marrying or entering a civil union is no longer suitable after marriage/civil union. Therefore, your Will is automatically revoked by the Wills Act. This of course, ignores the reality that the majority of relationships start on a defacto (unmarried) basis for quite some time. Despite this somewhat backwards assumption, this means you need to do a new Will once you are married or in a civil union. However, as with every rule there is always an exception. If your Will is prepared in contemplation of marriage or a civil union then you do not need a new Will – it continues to be valid after you enter the marriage/civil union contemplated.

If you have been appointed as an executor of a Will, then when that person dies you are responsible for administering their estate and carrying out their wishes according to the Will. You may not have known you were an executor (surprise!). Or, you may have been fully aware of this and had discussions with the Will-maker about what they wanted to happen. An executor’s role can be very straightforward, or it can be fraught with conflict. Read on to find out how to deal with all potential eventualities . Locating the Will and understanding the terms You should locate the original Will and ensure you understand its terms, for example, what happens if a beneficiary has passed away or if the beneficiaries are still minors. The estate’s lawyer can assist with any interpretation issues. It is very important that you keep the Will in a safe place and do not alter or mark it in any way. Assisting with funeral arrangements As executor you have the authority to make decisions about the funeral and what to do with the body (ie. cremation or burial). Sometimes there will be funeral instructions in the Will, a pre-arranged funeral plan or the family may be aware of funeral wishes. If you are an independent executor, you may leave the decision making to family. The Court has determined that where there is no agreement regarding where a body is to be buried then the executor’s rights and duty to dispose of the body apply, and the executor will make the ultimate decision. Identifying assets and liabilities of the estate You must identify the assets and liabilities of the estate such as bank accounts, property, insurance, shares, income streams and debt. If the estate has an asset worth more than $15,000, then you must engage an estate lawyer and apply for probate. Probate gives you, as executor, authority to deal with the assets of the estate. Applying for probate The Court ensures that an estate is not left unadministered where an executor refuses or neglects to carry out their duties. If you fail to apply for probate within three months from the death of the Will-maker, any other executor, or any other person interested in the estate, can make an application to Court to be appointed as your replacement. The Court will give you the opportunity to respond, or to formally step down. If the Court does not hear from you, then an alternative executor will be appointed by Court order. The Court has the power to remove you and appoint a replacement. For example, there may be conflict issues between you and another executor, or a family member or other interested person might take issue with your appointment. This will involve a Court hearing if you wish to defend your position, or you do not reach an agreement to step down. Often the appointment of an independent person can resolve conflict issues. Securing and insuring property Any assets should be secured so far as possible. For example, if there is a property, you should check who has access to keys, that the insurance is up to date and that any expenses (such as rates, water and power) are up to date. Notifying Relevant Parties You or the estate’s lawyer should notify relevant providers of the passing, such as the estate’s bank, insurer, WINZ (if a benefit was being received), IRD and any other asset providers or debtors. You must also notify the beneficiaries of the Will and make relevant disclosures to them. Your estate’s lawyer can assist with this. Risks facing executors Potential arguments can arise between family members who may be unhappy with the terms of the Will. The Court can become involved where an interested party makes a claim on the estate. As executor you are named as a party to the claim and are required to participate in the Court process. You are under a duty to take account the interests of potential claimants on an estate and therefore can be held personally liable to the beneficiaries or potential claimants for distributions made within six months from the grant of probate. Due to this potential liability, it is strongly advised that estate’s assets are generally not distributed until the expiry of six months. In practice, estates can take several years to distribute. Before making distributions, you should seek advice from your estate’s lawyer to ensure you are not exposing yourself to undue risk. You also should take advice as to how to manage any conflict between the beneficiaries and how to deal with potential claims. The Court of Appeal has confirmed that an executor must be even-handed when dealing with beneficiaries/claimants and must not actively or dishonestly conceal relevant information about the estate. As executor, you are required to act with neutrality and independence, while doing your best to follow the wishes of the Will-maker. You can attempt to reach agreement with all beneficiaries as to how assets are to be distributed, but if there is no agreement it will be for a Court to decide. Although uncommon, you may also be required to act on the interests of minor children or mentally disabled persons who are otherwise entitled to make a claim. Where the Will leaves a life interest, you as executor become the trustee for that life interest, and your duties and obligations continue. These extend to duties under the Trusts Act 2019. Talk to our estate planning team about your options and to obtain the right advice for you. There are a few things to think about in relation to your Will.  Try our Will questionnaire here, and one of our team will be in touch.

With our borders opening up again, the lure of hopping on a flight that lasts more than 2 hours is strong. Regardless if you are packing your bags for two weeks or two years, there are several things you should consider before you get to that boarding gate. This list of considerations could become extensive pretty quickly, so we have limited our comments strictly to a few key matters to ensure your legal ‘house is in order’ and we leave you to decide whether to exchange your money to Pounds Stirling now or on arrival, and how many pairs of shoes are too many to pack. Do I need a Will? The short answer is yes. A Will is an important document, regardless of your age and stage. Every adult should consider having a Will. It does not have to be a complex or time-consuming process. At Holland Beckett Law, we understand that your focus might be on different things, such as whether to go to Rome or Venice (or both), so we can prepare a Will for you that is fit for purpose and meets your present needs. [click here for more information] Should I have Enduring Powers of Attorney in place? The common misconception is that Enduring Powers of Attorney are reserved for ‘old people’. This is incorrect. In the instance of the proverbial “hit by a bus” (or falling off a scooter may be closer to home), if you have an accident or injury that renders you unable to make your own decisions then these documents assist your health professionals and family know whom to speak to and manage your affairs. But take accident or injury out of it, what happens if you are trekking Everest (there’s no wifi up there…) and a critical document needs to be signed or a funds transfer made – with these documents in place you can leave your affairs in the hands of the people you trust, and carry on with getting that perfect Insta shot at the summit. [click here for more information] Who can administer my Trust in my absence? Trusts are a separate consideration, and require a (similar but) separate document to enable someone to act for you in your capacity as a trustee in respect of the assets of the Trust whilst you are overseas (rather than in your personal capacity for your personal property). If you have a Trust, your Will should also include provisions to deal with the Trust should the worst occur. At Holland Beckett Law, we can provide you with guidance on how best to have these matters structured during any absences from NZ. [click here for more information] Further, Trusts are governed by the Trusts Act 2019 (which came into force on 30 January 2021) which, amongst other things, reformed the duties and obligations on trustees particularly regarding disclosure obligations to beneficiaries. As part of the above structuring process, we can advise you on how the Trusts Act 2019 will impact you. Here at Holland Beckett Law, we understand that the ‘Big OE’ is a rite of passage for lots of kiwis, and it is a very exciting time – but even the best laid plans go awry, so preparation is key. We would be happy to discuss with you how you can best prepare yourself and your affairs to ensure smooth sailing….hopefully around the Greek isles.

A Will is perhaps the most important document a person might leave behind on their death. Around 1,500 people in New Zealand die without a Will each year. Why is a Will so important? A Will sets out a persons wishes after they die, and nominates a person or persons, called executors, to be legally responsible for carrying out those wishes. Such wishes will include things like: The distribution of your assets Maintaining and supporting your partner Gifts to family, friends and charities Appointing a guardian for children Transferring assets to a family trust and appointing replacement trustees Dealing with company assets Burial wishes Without a Will to guide what you want to happen with your assets, the law decides who will receive your assets and in what proportions (Section 77, Administration Act 1969). For many people, what the law says might be quite different from what you want to happen. Having a Will means your intentions and hopes are clear. If you do not have a Will it is worthwhile to consider the following: Who do I want to ensure is looked after when I pass? Do I have any special items I want to give to particular people? Do I want to set up a trust when I die or gift money or property to an existing trust? Do I want to support a charity or organisation? What funeral arrangements would I prefer? Who would I trust to be responsible for my assets when I die? Who will look after my children when I pass? Are my partner and my children provided for? What would I like to do with my digital assets (access to social media, shares, bitcoin)? As your circumstances change you should consider updating your Will. Therefore, if you have had a Will prepared some time ago, you should consider if your Will needs to be updated. If you get married or enter a civil union your will is automatically revoked. A Will can be challenged The law recognises that if you have a partner, child and grandchildren they should be acknowledged in your Will when you pass away. If your Will does not adequately provide for your partner, children or grandchildren (and in some circumstances your step-children) then there may be arguments after you die and a Court could be asked to decide what should happen. Your Will can be invalid if it does not contain certain formalities, or was prepared when you did not have capacity or you were forced into signing it. Therefore, it is important not only to have a Will, but to ensure that it is well prepared to best give effect to what you want and avoid arguments later on. Talk to our estate planning team about your options and to obtain the right advice for you. There are a few things to think about in relation to your Will. Try our Will questionnaire here, and one of our team will be in touch.

Buying into a retirement village is a decision that many people consider as part of their retirement planning.  Like all decisions of this size, it’s one that require careful consideration. In the majority of situations when moving into a Village, it will involve signing an Occupation Right Agreement (ORA) with the retirement village. An ORA sets out the terms on which you can live in the village and the rights and obligations of both you and the village.The most important thing you need to realise about buying an Occupation Right is that, unlike a freehold property, you will not \"own\" the unit or apartment. Instead, you simply have a contractual right to live there.This means you must pay the retirement village a weekly or monthly fee, you will not receive any capital gain, and the amount you receive back upon termination will generally reduce by up to 30%. It also means that in most cases you cannot mortgage the property or transfer or sell it as you may be able to with a freehold property.The terms of an ORA vary between villages, but usually contain the following: Cooling off period: You have 15 working days after signing the ORA to cancel if you change your mind. You should receive a refund of all payments made. Joint occupation: If you are buying the Occupation Right with your partner or spouse, the terms in the ORA usually apply to both of you jointly. You will both have the right to occupy the home. If one of you dies, the interest of that person automatically transfers to the other person.If you currently own a home in equal or unequal shares, or you would like to leave you interest in the retirement village home to somebody other than your spouse, you should raise this with your lawyer before signing the ORA. Village Fees: Most villages have a weekly or monthly fee which covers basic outgoings at the village. The fee may be fixed for your lifetime, or subject to change. Often, the villages offer additional services which can be bought at an additional cost. Termination and exit payments: You can terminate an ORA at any time on giving the required notice. There are limited grounds on which the retirement village can terminate an ORA, such as where you can no longer live safely in the village, or if you breach the terms of the ORA. The agreement will automatically terminate when you (and your spouse or partner if you are purchasing together) die.On termination, most villages deduct a fee that is equivalent to around 30% of your entry payment (or 10% for each year you have lived in the village if it is less than 3 years). In addition, you (or your estate) may not receive your exit payment until the village has sold your unit to someone else.For this reason, entry into an ORA is usually a commitment to reside in the village for the rest of your life. You should think carefully about your personal and family circumstances when deciding whether this is right for you, and make sure you choose a village that will meet your needs. If you change your mind once the cooling off period ends, you may find that you have insufficient funds to buy elsewhere. Some provide a 90 day grace period during which you can terminate the ORA without penalty. Wills and EPAs: Before you can live in a retirement village, you will also need to ensure you have a current and valid Will and Enduring Powers of Attorney for both your property and personal care and welfare in place. Occupation Right Agreements require you to obtain the advice of a lawyer before signing. If you are considering buying a retirement village unit or apartment, Holland Beckett Law can guide you through the process and provide the advice required.

Are you purchasing your first home? Completing a Kiwisaver First Home Withdrawal and obtaining a First Home Grant from Kāinga Ora may help you get on the property ladder. The Kiwisaver First Home Withdrawal and Kāinga Ora First Home Grant are two separate things each having their own eligibility requirements. Kiwisaver First Home Withdrawal To complete a Kiwisaver First Home Withdrawal you need to have been a member for at least three years. These funds must be applied toward the purchase of a residential property which you intend to live in for at least six months. If eligible, you can withdraw all your Kiwisaver savings other than $1,000 which you must keep in your Kiwisaver account. The funds from your First Home Withdrawal may either be applied towards the payment of a deposit where you have entered a conditional agreement or towards the balance required to purchase the property on the settlement date. A withdrawal application cannot be completed until you have a signed agreement to purchase a property. Most Kiwisaver providers take between ten to fifteen working days to process a withdrawal on receipt of your fully signed application. The amount of days your particular provider requires is set out on their respective first home withdrawal form which can be found online. Depending on whether you are wanting to use Kiwisaver funds for the deposit on the unconditional date or on the settlement date, you need to ensure that you give your provider enough time before your required date to complete the withdrawal. This can catch out first home buyers wanting to use their Kiwisaver funds to pay a deposit on a property going to auction as at auction the deposit is usually payable the same day you sign the agreement upon your winning bid. The withdrawal forms include a statutory declaration to be signed whereby you declare that you are eligible to make the withdrawal. Only certain people can witness signing of the statutory declaration including a Solicitor, Justice of the Peace or Notary Public. These forms also include a letter to be signed by your Solicitor. It is important that you factor in these signing arrangements when determining the timeframes required to withdraw funds. Once your application is processed by your provider, your Kiwisaver funds are paid to your solicitor. Your solicitor will then use these funds to either make payment of the deposit or towards the purchase price on settlement. Kāinga Ora First Home Grant To be eligible for a First Home Grant there are both income caps and property price caps which you must fall within. In the 12 months prior to your application you must have earned less than $150,000 before tax for a couple or an individual with at least one dependent and $95,000 before tax as an individual buyer without dependents. The Government recently increased house price caps effective from 19 May 2022. A table of the current price caps can be obtained from the Kāinga Ora website at House price caps :: Kāinga Ora – Homes and Communities (kaingaora.govt.nz). For the Grant you also must have been a member of Kiwisaver for at least three years and not currently own any property. You are also required to live in the property for at least six months. If eligible, you could receive up to $5,000 per person ($1,000 for each year up to five years you have paid into a Kiwisaver scheme) for an existing home and up to $10,000 per person ($2,000 for each year up to five years you have paid into a Kiwisaver scheme) for a new build. Prior to entering into an agreement to purchase a property you can apply for pre-approval of the Grant from Kāinga Ora via their website. If pre-approved, once you have then entered into an agreement to purchase the property you only need to provide Kāinga Ora with relevant documents two weeks prior to the settlement date. If you do not have pre-approval, you will need to apply for the Grant at least four weeks prior to the settlement date. These timeframes should also be factored in when presenting an offer on a property as you will need to have enough time prior to the settlement date to complete your application. Once your application has been processed, your solicitor will receive documents from Kāinga Ora which you will need to sign and have your solicitor return at least five working days prior to settlement. Like Kiwisaver funds, your First Home Grant also gets paid directly to your solicitor. We are well experienced at dealing with both Kiwisaver providers and Kāinga Ora. If you have any questions or would like any assistance with buying your first home, please get in contact with one of our property solicitors.

Online Tools We provide an obligation free online tool to provide you with further information based on your specific circumstances. Relationship Property Agreement or Contracting Out Agreement (Pre Nup) Click here to get started Will Preparation Click here to get started Estate Administration Click here to get started If you have a Will then you’re already one step ahead. But is your Will up to date? When was the last time you reviewed the terms of your Will? As your circumstances change, it is important to ensure the terms of your Will reflect your current wishes. It’s a good idea to review your Will after important events in your life such as a change in relationship status, changes in your financial situation, the purchase or sale of property, or births/deaths of family members. This is not only to ensure your wishes are up to date, but because some life events can revoke or invalidate provisions in your Will, and this can have unintended and unfortunate consequences. Marriage If you have recently married, your Will may no longer be valid. If you were to die without a valid Will, your estate would be distributed according to the rules of ‘intestacy’ set out in the Administration Act. This may not be in the way you intended. The exception to this is if your Will was made while you were planning on getting married, and your Will states it was made “in contemplation” of your marriage to your partner. Your Will isn’t likely to be a top priority right after your Wedding, so speak to your lawyer before your big day and make sure your Will is up to date. Separation or Divorce Unlike marriage, separation does not revoke a Will. If your ex-partner was named in a Will you made prior to your separation, that ex-partner may still benefit under your Will. If you obtain a separation order or an order dissolving a marriage or civil union from the Family Court some provisions in your will become void. The Will must be read as if your ex-partner died before you. Any gift to your ex-partner or appointment of your ex-partner will be void. So, if your circumstances have changed recently, or you haven’t looked at your Will in a while, it may be time to chat to your lawyer about reviewing your Will. This Article was published in First Mortgage Trust\'s \"First News\" Issue 86 June 2021.

When should you appoint a testamentary guardian and what do they do? A testamentary guardian is appointed via a Will or Deed to “step into your shoes” as a parent when you die. A testamentary guardian is not appointed to care for the child. That is something quite different and cannot be provided for in a Will. A testamentary guardian is appointed alongside the surviving parent (usually) for input into “the big important decisions” about a child’s upbringing like education (where do they go to school), health (major medical decisions not day to day bumps and sniffles), religion, residence (which country or region do they live in, not a specific house or street), and permission to marry under the age of 18. These rights and responsibilities end when the child attains the age of 18 years or earlier if the child marries, enters a civil union, or lives with another person as a de facto partner. Why do it? It is worth considering if you have separated from your child’s other parent to ensure your views about upbringing are represented in the event of your death or if you are worried your family will be “cut off” from the child when you die.If you are still happily in a relationship it is probably not necessary to appoint a testamentary guardian as it is likely you can trust your spouse/partner to make good guardianship decisions for your children if you die. If you are worried about what happens if you both die together then you could each say in your wills that “if we both die together, we appoint X as a guardian.” If you are the sole guardian of your child (the other parent has died already) then you should definitely consider appointing a testamentary guardian. So who does care for the kids if we die? The surviving parent would usually remain carer for the child unless unwilling or unable or unsuitable. If you have both died it is assumed that the family will rally around the child to take them in. Whomever they live with (which may be the testamentary guardian if appointed or may not be – there is no default assumption) may then file an application for a parenting order providing them day to day care together with guardianship orders if necessary.A testamentary guardian could apply for a parenting order if they wanted to contest day-to-day care or seek contact rights to the child and as they are already a guardian they would not need the leave of the Court to do so.Before an application for a parenting order can be filed, the guardian will normally have to provide evidence that he or she has sought to resolve the matter with the other guardian/s by family dispute resolution unless the circumstances are urgent.The legal test to determine a child’s care arrangements is “what is in the welfare and best interests of the child” so it depends on all the circumstances at the time. Things to remember Only one testamentary guardian can be appointed. The consent of the person to be appointed as a testamentary guardian is not required, A person appointed as a testamentary guardian cannot decline the appointment. As a guardian of the child, the appointee could apply to the court for an order for his or her own removal. Another guardian could also apply for removal of the testamentary guardian. A testamentary guardian has the same rights and responsibilities as the living parent/guardian but only upon the death of the appointor. They have no say in the upbringing of the child prior to that parent’s death. By appointing a testamentary guardian you are not appointing somebody to care for your child if you die.

An Enduring Power of Attorney (“EPOA”) is a legal document which sets out who can take care of your personal or property matters if you are unable to. The person named in the EPOA is called your attorney. These documents can be organised through your lawyer and are governed by the Protection of Personal and Property Rights Act 1988. What is a Power of AttorneyIn New Zealand there are three kinds of Power of Attorney (“POA”) which can be enacted for a range of reasons and to deal with different aspects of your affairs: A standard POA; An EPOA for property matters; and An EPOA for personal care and welfare. An EPOA takes effect when you lose capacity and are unable to make your own decisions, and continues despite your loss of mental capacity. However, you may elect for an EPOA for property matters to come into effect before you lose mental capacity. A person is presumed to be mentally capable unless it is proved otherwise. A Court or qualified health provider makes a decision about whether someone is mentally incapable. Standard POAA standard POA is useful for when you are physically unable to sign documents, which could be due to geography (eg. you are out of the country) or disability (eg. you’ve lost use of your arms). A standard POA can also help with specific tasks on a regular basis, such as allowing your attorney to pay your bills or sign transactional documents on your behalf. Under a standard POA, your attorney is provided with the right to sign documents on your behalf, but this is immediately revoked if you die or if you lose mental capacity. You can also specify that a standard POA only have effect for a specified time period (for example, the duration of an overseas trip). EPOA property mattersAn EPOA for property matters provides your attorney with the power to make decisions relating to your money and property. An EPOA for property matters can be used immediately or only if you lose mental capacity. An EPOA does not assume that mental capacity is permanently lost, if capacity is regained, the attorneys authority can be revoked or suspended. For this type of EPOA, you can have one or more attorneys, or a trustee corporation to act as your attorney. Personal care and welfare mattersAn EPOA for personal care and welfare authorises the attorney to make decisions relating to your health and welfare, such as choosing a rest home or medical treatment. An EPOA for personal care and welfare matters can only come into effect if you lose your mental capacity. For this kind of EPOA you can only have one individual as your attorney, you cannot appoint two persons or a trustee company. You can however, appoint successor attorneys. EPOA and TrustsNone of these legal documents are particularly useful when it comes to Trusts. An EPOA for property cannot be used to make trustee decisions or deal with Trust property. This is because the trustee is not making decisions in their personal capacity and the Trust property is not the personal property of the trustee. The Trusts Act 2019, which came into force on 30 January 2021, makes the process of removing an incapacitated trustee easier. Rather than going to Court, the following people can remove a trustee: The person with the power of appointment of trustees; or, if there is no appointer: The continuing trustees; or if there are no continuing trustees: The person holding an EPOA for the incapacitated trustee. When an existing trustee retires or is removed, or a new trustee is appointed, executing the deed of appointment, removal, or discharge has the effect of removing ownership of the Trust property from the previous trustees and vesting it in the new or continuing trustees without the need for any transfer, conveyance or assignment (subject to any mortgage or liabilities attached to the property). If the divesting and vesting need to be notified, recorded or registered under another Act, such as the Land Transfer Act, a copy of the deed and a statutory declaration by the new or continuing trustees is enough to achieve the change in title. The new and continuing trustees can complete any formal requirements on behalf of a former trustee who has lost capacity. Preparing EPOAs or POAs EPOAs and POAs are important legal tools which allow trusted persons to take care of your affairs if you are no longer able to. If you have any queries or would like to prepare EPOAs or POAs please reach out to us at Holland Becket Law.

When a person makes a decision in relation to their personal or property rights, they are presumed to have capacity unless there are good reasons to suggest otherwise. A person’s decision does not have to be wise, so long as they understand the nature and consequences of that decision. But, what do legal practitioners have to do when they spot “red flags” which raise questions regarding a person’s capacity to enter into a legal document? Spotting the difference: medical and legal capacityIn medical terms, capacity refers to cognitive ability. Medical conditions which may affect a person’s capacity include dementia, brain injury, stroke, schizophrenia, acute depression, alcohol or substance addiction as well as learning disabilities. Enduring Powers of Attorney (“EPOA”)To enter into an EPOA a person must have capacity and be able to: understand the decision’s nature and purpose and appreciate its importance for them; retain the relevant and essential information long enough to make the decision; use or weigh relevant information, considering any consequences of their decision and other possible options, including the option to not make the decision; and communicate their decision, verbally, in writing or some other way. A person’s capacity may come and go. The length of time that a person must retain information relevant to the decision depends on the type of decision being made. While an unwise decision may be considered a “red flag”, the assessment of capacity must take into account the process used by the person to arrive at a decision, rather than looking at the substance of the decision made. An assessment of capacity should also not set the level of understanding too high. It is not necessary for the person to understand every part of the decision. However, the person should be able to explain the benefits and risks associated with each option available to them and state why they have made the decision that they have. WillFor a Will to be valid the Will-maker must have testamentary capacity, which is the ability to understand: that they are making a Will and its effect; the extent of the property in their estate; the nature and extent of the potential claims upon the Will-maker, including those who the Will-maker included and those who are excluded from their Wills. Again, there is a presumption of capacity. If there is evidence that the Will-maker lacked capacity, those seeking probate must satisfy the Court that the Will-maker had testamentary capacity on the balance of probabilities. What practitioners need to do if they suspect a person lacks capacity If a legal practitioner sees “red flags” leading them to question whether a person has capacity to enter into a legal document, a medical assessment of capacity should be sought. Legal practitioners should identify why a person’s capacity is being questioned and then a clinician can assess the person’s capacity through an interview process. A person cannot be compelled to undergo a capacity assessment (other than by a Court order). In the case of an outright refusal, a legal practitioner should consider whether the creation of the legal document is in the best interests of the client. Good file notes are a must, all “red flags”, advice and medical assessments should be carefully documented. Particularly where family members have serious concerns or where a decision has serious consequences or risks. Most importantly, file notes should focus on a person’s ability to understand, retain, reason and communicate regarding the decision. It is important to understand that a person may be impaired, yet nonetheless capable of creating a legal document.

持久授权书 我们中的许多人都考虑过为死后做准备。但是，如果您失去自己做决定或妥善照顾自己的能力，会发生什么？拥有持久授权书 (EPA) 可以确保其他人能够介入并代表您在财产，个人医疗和福利方面行事。 什么是持久授权书？ 持久授权书赋予您指任的授权人（例如家人或朋友）代理您做决定的能力。您的授权人必须以您的最佳利益行事，并尽可能地让您参与决策。 EPA 有两种类型： 1. 财产：您在EPA 中指定的授权人（或多名授权人）可以代理您管理资产和财务。您可以指定一名以上的授权人并指认他们是否必须共同行事或单独行事。您还可以选择EPA 立即生效，还是仅在您不再具备心智能力时生效。 2. 个人医疗和福利：您可以指任授权人在您的个人医疗和福利方面做出决定，例如确保您有适当的生活护理和医疗安排。 EPA 仅在医生证明您不再具有心智能力时才生效。 对于两种类型的持久授权书，如果您指定的第一位授权人无法履行职责，您可以指定继任授权人行事。您还可以要求您的授权人咨询您在EPA 中指定的其他人或向其提供信息。 家庭法院负责监督与 EPA 相关的事务，并审查您的授权人为您行使 EPA 时做出的任何决定。 如果我没有 EPA 怎么办？ 如果您失去了自己做决定的能力，或许再也无法管理自己的事务。比如说您可能无法出售房屋、管理银行账户或做出有关健康，生活安排或相关医疗护理的重要决定。 如果发生这种情况的时候，再签署 EPA 已为时已晚。只能由其他人，例如亲戚、社会工作者或医生，向家庭法院申请一名指定人为您做决策（我们称其为福利监护人和财产管理人）。与 EPA 下的授权人不同，福利监护人或财产经理必须至少每 3 年向家庭法院申请审核他们的任命权。 因此，建立 EPA 可以帮您的家人减少申请家庭法院授权的一系列费用并减轻压力。 我如何获得 EPA？ 仔细考虑您想任命的授权人（或多名授权人），以及是否希望有其他人监督您的授权人。最重要的是您要任命一位您信任，会理解并尊重您意愿的，也会为您做重要决定的人。 然后，您需要联系律师或其他有权限的人来帮助您创建 EPA。您可以通过联系lawyers@hobec.co.nz或 致电07 578 2199 来Holland Beckett Law 寻求帮助。

Many of us think about making plans in preparation for when we die. But what happens if you lose your ability to make your own decisions or to properly look after yourself? Having an Enduring Power of Attorney (EPA) in place can ensure that somebody else will be able to step in and act on your behalf when it comes to your property and personal care and welfare. What is an EPA?An EPA gives the person you name as your attorney (such as a family member or friend) the ability to make decisions on your behalf. Your attorney must act in your best interests and involve you in the decision making as much as possible.There are two kinds of EPA:1.Property:The person (or people) you name in this EPA can help you manage your assets and finances. You can appoint more than one attorney, and you can choose whether they must act together or can act separately. You can also choose whether this EPA comes into effect now, or only if you no longer have mental capacity.2.Personal Care and Welfare: You can appoint one person to make decisions in relation to your personal care, such as ensuring you have appropriate care and living arrangements in place. This EPA will only come into effect if a medical practitioner states that you no longer have mental capacity.For both kinds of EPA, you can appoint successor attorneys to act if the first attorney(s) you have named are unable to. You can also require your attorney(s) to consult with or provide information to any other people named in your EPA.The Family Court has oversight of matters relating to EPAs, and the ability to review any decision your attorney makes while acting under your EPA.What if I don’t have an EPA?If you lose your ability to make your own decisions, you may no longer be able to manage your affairs by yourself. For example, you may not be able to sell your house, manage your bank accounts or make important decisions concerning your health, living arrangements or related care decisions.If this happens, it is too late to sign an EPA. It will then be up to somebody else, such as a relative, a social worker or a medical practitioner, to make an application to the Family Court for somebody to be appointed to make decisions for you (called welfare guardians and property managers). Unlike an attorney under an EPA, a welfare guardian or property manager is required to apply to the Family Court for a review of the order appointing them at least every 3 years.Setting up an EPA can therefore save your family from the stress and cost of applying to the Family Court to ensure you are looked after.How do I get an EPA?Think carefully about who you might like to appoint as your attorney (or attorneys), and whether you would like anybody else to have oversight of your attorney’s decisions. It is important that you appoint somebody you trust to understand and respect your wishes, and make important decisions that will affect you.You will then need to contact a lawyer or other authorised person to help you create your EPA. You can contact Holland Beckett Law for assistance at lawyers@hobec.co.nz or 07 578 2199.

The long-awaited Trusts Act 2019 (Act) has arrived! The Act aims to update trust law and make the law accessible to all (not just lawyers). The Act will come into force on 30 January 2021, and will then apply to all existing written trusts, as well as any new written trusts established. It could also apply to statutory trusts or other types of non-express trusts (such as constructive or equitable trusts) if the Court decides that the Act should apply. Duties If you are a trustee of a written or statutory trust, or are considering becoming one, we summarise your duties from 2021 below. Mandatory duties (cannot be “contracted out” of within the terms of the trust deed) A trustee must: Know the terms of the trust; Act in accordance with the terms of the trust; Act honestly and in good faith; and Hold/deal with property and act for the benefit of the beneficiaries, or to further the permitted purpose of the trust, in accordance with the terms of the trust. There are other mandatory duties to be aware of, including retention of core documents, keeping beneficiaries informed and making information available to beneficiaries on request. Default duties (can be “contracted out” of within the terms of the trust deed) A trustee must: Exercise the care and skill that is reasonable in the circumstances having regard to any special knowledge or experience that the trustee has or would reasonably be expected of the trustee in light of their course of business or profession; Exercise care and skill that a prudent person in business would exercise in managing affairs – also known as a duty to invest prudently (having regard to any special skill and experience that the trustee may have or would reasonably be expected to have); Not exercise a power of a trust either directly or indirectly for their own benefit; Consider actively and regularly whether the trustee should be exercising the trustees powers; Not bind or commit trustees to future exercise or non-exercise of a discretion; Avoid a conflict of interest between a trustee’s interests and the interests of the beneficiaries; Act impartially to beneficiaries and not be unfairly partial to any beneficiary or group of beneficiaries; Not make a profit from the trusteeship of the trust Not make any reward for acting as trustee, but this does not affect the ability to be reimbursed for legitimate expenses and disbursements; and Act unanimously (if more than one trustee). Disputes The Court has the ability to review an act, omission or decision (or proposed act, omission or decision) of a trustee in certain circumstances. The Act also introduces alternative dispute resolution (ADR) provisions. ADR processes are ways to resolve and determine disputes outside of court, such as mediation and arbitration. In certain circumstances, the Court may ‘force’ parties to go to ADR in relation to trust disputes. Why do I need to know this now? The Act provides for an 18-month transition period from July 2019 to January 2021 to allow trustees and beneficiaries to become familiar with the new legislation and update their trust structures and deeds. 18 months may sound like a long period, but in reality, it takes time for both trustees and beneficiaries to consider the changes, take advice and discuss/agree on necessary amendments to the trust deed. A key area for consideration is that of default duties – should they apply, should they be excluded in full or in part, how this will affect the beneficiaries to be able to hold the trustees to account for future decisions. Some scenarios in which we envision changes will need to be made: Professional trustees: o Defining the scope of their experience/skills; o Clearly allowing the professional trustee to be remunerated for providing professional skills (such as accounting or legal services); or o Whether the professional trustee should become a “special adviser” to the trust as opposed to a trustee, or alternatively whether a special adviser should be appointed. Trustees who are also beneficiaries: o Modify duties not to act for own benefit or act in conflict of interest situations. At Holland Beckett Law, we can advise you on how the Act will impact you and help you through this process to prepare you and your trusts for the new regime.

Time for a change? Changing the Trustees of your Trust There is currently a Bill before Parliament that will amend many aspects of Trust Law contained in the Trustee Act of 1956. The amendments are likely to come into force in 2019. In anticipation of the overhaul of Trust Law it is a good time to consider whether the current trustees of your Trust are still the best people for the role. There are various circumstances which may cause you to consider changing a trustee: Change in Circumstances - A change in a trustee’s personal circumstances can have a direct impact on Trust management. For example, depending on how active your Trust is, a trustee moving overseas creates a geographical barrier that can transform into an administrative circus. With the increasing compliance obligations there are more and more documents for trustees to sign in accordance with specific witnessing requirements, so needing documents to be signed overseas is an added administration expense. In addition, having a trustee based outside of New Zealand can have significant tax implications. Ageing Trustees - A trustee displaying early signs of dementia or another long-term medical illness should not be taken lightly. Trust Deeds typically direct that all decisions must be unanimous. If a trustee is deemed to have lost mental capacity then unanimous decisions are no longer possible. A mentally incapacitated trustee cannot sign any documentation, including Agreements for Sale and Purchase of Real Estate and even a Deed of Retirement of Trustee to enable them to be removed from Trust property. It is advisable to retire a trustee that falls into this category before they lose their mental capacity. Otherwise, an application to the Court is the only way in which you can remove the trustee and enable the Trust to continue to operate. This is a costly process that can take a number of months. It is important to note that while Enduring Powers of Attorney are very useful documents for dealing with a person’s affairs, they cannot be used for removing a trustee from a Trust. Adult Beneficiaries - The beneficiaries of your Trust may be your children who are now adults. Perhaps it is suitable for a particular child or children to play a role in the administration of the Trust. It is common for settlors (holding the power of appointment of trustees) to appoint their adult children as replacement trustees in their Will if the Trust is to operate beyond their passing. However, involving your adult children in the Trust during your lifetime could be a beneficial learning experience and lighten the load on other trustees, rather than waiting until your death to thrust the new-found duty upon them. Professional Trustees - A professional trustee’s retirement from accounting or law may be on the cards or you have moved your Trust’s affairs to a new firm. Appointing a new professional trustee or a trustee company could be a prudent change and is often easier to do while your existing independent trustee is still around and able to sign documents. A change in trusteeship is usually formalised by a Deed of Retirement and Appointment of Trustees to be signed by the retiring, continuing and new trustees. Once the deed is signed, it can then be used as the base document to implement the change of ownership of the Trust’s assets. This could include real estate, shares and other investments. Bank accounts and insurance policies also have to be updated. Changing the trustees of your Trust is not a two minute task, however, it is a process that enables the smooth operation of your Trust which ultimately benefits all involved. Holland Beckett Law can guide you through the process. Please do not hesitate to contact us if you have any queries.

Online Tools We provide an obligation free online tool to provide you with further information based on your specific circumstances. Relationship Property Agreement or Contracting Out Agreement (Pre Nup) Click here to get started Will Preparation Click here to get started Estate Administration Click here to get started Where there’s a Will there’s a Way People making a Will normally think that they can do what they want with their own property. Since this is true for people during their lifetime, many are surprised to learn that their Wills can be challenged after their death if they do not meet certain requirements. This article talks about the main ways that Wills are challenged in the Courts. Family Protection Act One of the most common kinds of challenges to a Will is a claim under the Family Protection Act. This 1955 piece of legislation allows certain family members (particularly children) to make a claim for “maintenance”. A Court deciding this kind of claim will ask whether the person writing the Will has properly considered their moral duty to look after their family and may adjust legacies if the Court considers the Will to be unfair. For small estates, maintenance is normally ordered for children or other dependents who have special needs. This can be a medical condition or financial circumstances that mean they need a greater share of assistance than other children. In larger estates (particularly those over $500,000) the Courts may order maintenance in favour of any child who did not receive a reasonable share of the estate. Awards of between 10% and 20% of an estate are often made in favour of a Will-maker’s biological and adopted children. This does not mean that it is impossible to make a Will that does not provide for all children. Sometimes a child will have acted in such a bad way toward their parent that they are “disentitled” from receiving any gift, however, the standard for this is very high and needs to be properly documented. Likewise, while there is no presumption that the Will-maker will share assets amongst children equally, the larger the disparity, the clearer the justification for it needs to be. It is very important when making a Will to consider how any unequal distributions are justified. Testamentary Promises Act A second kind of claim is found in the Testamentary Promises Act. That legislation allows potential beneficiaries to sue the estate for promises about gifts that would be left to them in a Will. These claims are significant because the applicant does not need to establish that there was a formal contract. So long as the promise was made in return for some value (even for past good works or familial affection) they may be able to receive what they say was promised to them. Talking about your Will with family can be difficult and embarrassing especially when children are being treated differently. However, the best way to prevent a Testamentary Promises Act claim is to be clear with the family as to what they are likely to receive under the Will and to explain the reasons for these decisions. When circumstances change, sometimes promises that have been made will also need to change and this should be discussed openly. Undue Influence A final kind of claim that can be made against a Will is based on a direct attack on the Will itself. Where the person writing a Will has been influenced by a family member (such as a child who is involved in their care) this can lead to a Will being disregarded. Like cases where the Will-maker did not have the legal capacity to write a Will, cases where a person has been unfairly influenced by a person can mean that a Court treats a Will as not representing the Will-maker’s intentions. The Court may look to earlier Wills or make adjustments to ensure that the Will-maker’s true intentions are recognised. Where a Will is made by a person in poor health or with the assistance of a very close family member, the chances of this kind of claim increase. It is very important in these circumstances that the Will-making process is property documented and a lawyer should be engaged to give independent advice to the Will-maker. This kind of claim is unique because it is about protecting the Will-maker and reflecting their true intention. However, it can also be open to abuse. Conclusion Making a Will is a very important decision and Will-makers should be able to expect that their wishes are carried out. For this reason, it is important that you obtain good legal advice when writing your Will. It is also a good opportunity to talk with family about your wishes and expectations for once you have passed on, so that you know your desires will be respected. Holland Beckett Law’s team are qualified to give advice on ensuring that your Will is safe and can also assist you with resources and support to allow you to have these difficult conversation with family. Our team of experienced lawyers are more than happy to discuss any of these matters with you further.