Ending a tenancy on short notice where family violence has occurred

The death of a loved one is never easy. There are all manner of things that need to be organised when your significant other dies, such as their funeral, as well as saying goodbye and grieving. The process can become even more complicated when issues regarding their estate and relationship property arise. It is not widely known that a surviving spouse or partner has a right to make an election either to take their entitlement under the Will or to seek an order for the division of relationship property, if that is more favourable than what they are left under the Will. A concept of moral duty to adequately provide for certain family members out of your estate also exists. It is also possible to seek provision from an estate if you provided a service whilst the person was alive on the basis they promised to provide for you in their Will, but this has not been recorded in their Will. Property (Relationships) Act 1976 (“PRA”)The PRA gives a surviving spouse or partner two options. Option A is to apply for a division of the relationship property, the starting point being an equal division. Option B is to simply take what you are entitled to under the deceased’s Will or if the deceased did not have a valid Will (dying ‘intestate’), to take what you are entitled to under the Administration Act 1969. In some circumstances, the executors of an Estate can also seek permission from the Court to bring a claim against the surviving spouse/partner for division of property between the spouse/partner and the Estate. This can be complex and is less common. Why make a choice for division of relationship property rather than taking what you’re entitled to under the Will? The surviving spouse or partner could be entitled to more under the PRA than they would receive under the Will. Examples include: If no provision or inadequate provision is made for the surviving partner in the Will, for example if the family home was owned by the deceased and it has been left to their children from an earlier relationship. Where there is no valid Will . If there is an outdated Will which provides for a previous partner and not the current partner. There are specific time limits involved with making an election, so it is important that legal advice is sought promptly. Legal advice will help you make an informed decision within the correct time frame while making the process as simple as possible. Family Protection Act 1955 (“FPA”)The FPA allows for a claim to be made by a spouse or partner (and other categories of persons) for provision from a deceased’s estate if proper maintenance and support has not been provided to the surviving spouse or partner. There are a number of circumstances that the Court can take into account when determining whether to grant provision from a deceased’s estate. Applications can be made by a spouse or partner, children and grandchildren, and even stepchildren or parents if they were being financially supported by the deceased and they feel there should have been provision made for them. As with a PRA claim, there are specific time limits for bringing an application under the FPA and it is important that legal advice is sought promptly. Law Reform (Testamentary Promises) Act 1949 (“TPA”)The TPA provides an avenue to make a claim if someone provided services to the deceased and in return they promised to leave them something under the Will, but in fact no provision was made for them. Such services can include anything above and beyond the reasonable obligations expected of a loved one. The claimant needs to prove: That they rendered services to, or performed work for, the deceased in their lifetime; That there was a promise by the deceased to reward the claimant; A link between the services and the promise; and There was no promised testamentary provision or reward provided in the Will for the claimant. The promise for compensation can be expressed or implied, in writing or verbal. The Court will consider all facts in the case when making a decision. When people get caught outThere are a few laws surrounding wills which may surprise you. The unpleasant truth is normally discovered by those who are already grieving. Administration Act 1969When a person dies without a Will or their Will is invalid, they are considered intestate. This means that distribution of their estate will occur under the Administration Act 1969. Section 77 of the Administration Act 1969 sets out the patterns of distribution according to who the intestate leaves behind, for example: a spouse or partner, children, and/or parents. Section 77 of the Administration Act 1969 is noteworthy in that, after the payment to the surviving spouse/partner of a prescribed amount and them receiving the chattels, it distributes the residue of an intestate person’s estate with one third to a spouse or partner and two thirds to any children. Therefore, it is particularly important for those who have children to leave a Will if they wish to provide more than a third of their estate to any current spouse or partner. Marriage cancels a will, but divorce does notWhen a Will exists before marriage, once a person is married, the Will is only valid if the Will states that it was made “in contemplation of the marriage”. On the contrary, when divorce or separation occurs, a Will is not automatically void. If the marriage or civil union has been legally dissolved, but the Will has not been changed, then the appointment of the spouse as executor and any disposition to the spouse under the Will (with limited exception where a disposition is in favour of children) is void and the Will must be read as if the spouse had died immediately before the Will maker. If you still wish to appoint your ex-spouse or partner as an Executor and/or include them as a beneficiary once your marriage or civil union has been dissolved, then we strongly recommend that you update your Will so that it is clear that your wishes are post-dissolution and still stand. If no legal dissolution of marriage or civil union has occurred, then the provisions of the Will that relate to the spouse are not automatically void. We strongly encourage that Wills are updated as soon as separation occurs otherwise an estranged spouse or partner may receive more than intended. If a Will is not updated, any children may be left to make a claim to the estate. Whilst separation will be a factor taken into account, it is onerous to leave family to work through this at a time which is already emotional. ConclusionIn an era where nuclear families are no longer the norm or majority, it is important to receive legal advice on, and to leave, a Will so that you can be in control of how your estate is distributed on your passing. Not only does this provide certainty for your loved ones, but it can resolve familial relationship issues before they arise in what is already a highly emotive time. The Holland Beckett Family and Estates teams would be happy to assist you, in the first instance in completing a legally valid Will, and also in working through any challenges to a Will that you face on the death of a loved one. Please do not hesitate to get in contact with us early on so that we can ensure the minimum amount of stress is placed on you throughout such difficult times.

On 7 December 2022, the High Court heard urgent arguments regarding a six month old baby (“Baby W”) who was in Starship Hospital and required heart surgery. The parents of Baby W were not consenting to the use of blood from people who had been vaccinated for COVID-19 in Baby W’s surgery, which required the use of donated blood products. The parents of Baby W wanted only non-vaccinated blood to be used in the surgery – a process called directed blood donation. Directed blood donations Directed blood donations are blood donations arranged by an individual, family or group of people for a particular person. Directed blood donations are not a practice that is supported by the New Zealand Blood Service (“NZBS”) due to there being no evidence that they lead to improved patient care. It is also thought that directed blood donations can increase the risk of acquiring transfusion associated infections (such as where a donor feels pressured to answer incorrectly to the pre-donation health survey in order to be allowed to donate blood for a specific person). The NZBS gave evidence in Court that there was no scientific evidence that there was any COVID-19 vaccine-related risk from blood donated by donors who were previously vaccinated with any COVID-19 vaccine approved for use in New Zealand. Other reasons against directed blood donation in these circumstances (and more widely) include: Baby W required rapid access to a full range of blood and plasma products to support the complex heart surgery; The introduction of unnecessary complexity into well-established blood collection and processing systems, translating to an increased risk of errors and possibility of inadequate blood product supply for the patient as some products, including those which Baby W was expected to require, are collected using specialised collection techniques from carefully qualified donors and are manufactured using regulated processes. Some products are even manufactured in Australia; COVID-19 vaccination (or infection) produces antibodies to the virus. There was no evidence of harm from antibodies to COVID-19 being present in blood and it was unlikely that any products of COVID-19 vaccines can end up in the blood stream. Should any such products have been in the donated blood, there was no evidence of harm from these products. Directed blood donations are also not recommended by international expert consensus guidelines, including in the United Kingdom, Australia and Canada. An instance where directed blood donations may be appropriate was said to include where a patient had a rare blood type, where no compatible volunteer donations were available. As discussed, this did not apply to Baby W’s circumstances. Guardianship Guardians need to agree on important matters such as whether medical treatment which is not routine in nature should occur. If the guardians cannot agree (for example, one guardian wants a child to be vaccinated and the other does not) then ultimately the Court can be asked to make a determination resolving the dispute between guardians.(for more information on this particular issue, see here). Sometimes parents agree but medical professionals disagree on the course of life saving treatment for a child. In this case, both parents were not consenting to the use of blood products from people who had received COVID-19 vaccination in completing heart surgery on Baby W but initially agreed that surgery needed to be completed. There were unvaccinated people that were prepared to give a directed blood donation. The Court has the ability to make an order appointing guardianship of a child under 18 years old to the Court or another named person for a specified period of time. Te Whatu Ora Health New Zealand applied to the Court for an order putting Baby W under the guardianship of the Court, so that the life saving surgery could go ahead using the NZBS available blood products (ie. blood from vaccinated and unvaccinated donors, without differentiation). The Judge took great care in their decision to acknowledge that the parents of Baby W wanted the best for their child and held genuine concerns, but ultimately agreed with expert evidence that blood donated by people who were vaccinated for COVID-19 was safe for use. The best interests of the child are the paramount consideration for the Court. Using blood from a donor of the parents’ choosing was not an available alternative, and this was not supported by doctors. Therefore, this was not a safe alternative in Baby W’s best interests. Baby W was put under Court guardianship to allow NZBS available blood products to be used for Baby W’s heart surgery effectively overruling the parents’ decision. The parents then withdrew their consent to the pre-surgery procedures and surgery generally, and the Court issued a further urgent minute widening the guardianship powers to include all necessary pre-surgery procedures and surgery generally. This is not the first, nor last time that the Court will exercise its powers to appoint the Court as guardian. Other examples of the Court intervening in this way include: For the purpose of obtaining a DNA sample to determine paternity of a child when one guardian refuses to consent to the sample being taken; Variously where religious beliefs meant that parents would not consent to a blood transfusion which was vital to a child, as well as for kidney or liver transplants which would require blood transfusion as a part of those procedures; When a baby’s mother carried hepatitis B but refused to consent to her baby receiving hepatitis B injections to stop them contracting the disease due to religious beliefs; When a nine year old’s father would not accept his child’s diagnosis of HIV, despite the child’s mother’s reason for death being recorded in part as caused by HIV. The child had also taken HIV medication for several years prior and there was serious risk to the child if the medication was not continued; and When a child’s safety is at serious risk in the care of either or both parents. Outcome An order enabling the surgery to proceed using NZBS blood products without delay was made as this was considered to be in the best interests of Baby W in the circumstances. It should be clarified that the Court intervened to the least extent possible in order to save Baby W’s life. This is a principle that the Court maintains to ensure that parents retain their guardianship rights for their children to the maximum extent possible in the child in questions’ best interests and welfare. The only act that the Court overruled the parents on, was the act of carrying out the surgery and the use of the blood products. Baby W was otherwise to remain under the parent’s guardianship once surgery was completed. The parents were informed at all reasonable times of the nature and progress of Baby W’s condition and treatment. If you find yourself facing an issue like this, the Family Law team at Holland Beckett Law would be happy to assist you in reaching resolution. The COVID Healthline is available for 24/7 advice and information in relation to COVID-19, including vaccination, on 0800 358 5453.

We provide an obligation free online tool to provide you with further information based on your specific circumstances. Click here to get started Separation can be a difficult process. Not only are there a lot of emotions involved, but there are likely to be assets that are owned jointly, or separately but which have been used by both parties during the relationship. Working out who gets to keep what can be straight forward in some cases, but often the matter is more complex than you may expect. The Property (Relationships) Act 1976 (“PRA”) applies to marriages, civil unions or de facto relationships of three years or more. In limited circumstances, the PRA can also apply to relationships of shorter duration. What is relationship property? The PRA defines both relationship property and separate property. The family home and family chattels, whenever acquired and in whoever’s name they are legally owned, are relationship property. Contrary to popular belief, whether or not you owned the family home or chattels before the relationship, they will be relationship property dividable equally between both parties to the relationship (subject to certain limited exceptions). Family chattels can include furniture, appliances, household tools, pets, as well as cars, caravans, trailers and boats if they were used wholly or principally for family purposes. Gifts from one spouse or partner to the other are generally not regarded as relationship property – so no, you don’t have to give back the rings. Relationship property may also include superannuation and KiwiSaver, shares and investments, business interests, life insurance policies, rental and investment properties, property acquired in contemplation of the relationship, rights in respect of a trust, as well as relationship debt (which does not have to be in the parties’ joint names). Bank accounts which hold funds earned or received during the relationship are also likely relationship property despite being in the name of only one of the parties. Taonga and heirlooms, as well as chattels used wholly or principally for business purposes, are excluded from the definition of family chattels. This means these items will usually be separate property rather than relationship property, however this is decided on a case-by-case basis. What is separate property? Any property that is not relationship property is separate property. Such property does not need to be divided between the parties to the relationship. Generally, separate property also includes: Property which was acquired by either party whilst they were not in a relationship and that has not been used during the relationship for family purposes; Property acquired out of separate property or any proceeds of sale of separate property; Any increase in value of separate property and any increase in income or gains derived from separate property; Property acquired from a third person by gift, inheritance, or as a beneficiary of a third person’s trust. It is important to keep property acquired by succession, survivorship, gift, or under a third party’s trust separate if you intend it to be separate property. If property can be seen to have been intermingled with relationship property, making it unreasonable or impracticable to regard it as separate property, it will become part of the relationship property pool. How is relationship property divided? While relationship property is generally divided equally between the parties of the relationship, there are limited circumstances where division should occur in unequal proportions. This may be due to economic disparity between the parties because of the effects of the division of functions within the relationship or in extraordinary circumstances that would make equal sharing repugnant to justice – although this is a high threshold to meet. Disclosure In order for your lawyer to advise you on what the full relationship property pool consists of and what your legal entitlements are, a process of disclosure by both parties of all assets, debts and interests must take place. Values will be determined, as well as the status of the item as relationship property or separate property. Following the completion of that process, the division of property can usually then be agreed by way of negotiation. Will we need to go to Court? Most people do not need to resort to the Family Court in order to resolve their relationship property division. It is only if an agreement cannot be reached between you and your former spouse/partner that Court proceedings are needed. Who gets what? You won’t walk away with half of a car so don’t get the chainsaw out. Generally, global division of relationship property can be reached without property needing to be sold – or cut in half. This involves taking into account the total value of the assets being retained by each party, and one global adjustment figure being paid by one party to the other party to ‘equalise’ the overall division so that each party is keeping 50% of the total net value of the relationship property pool. What about the pets? With the classification of pets such as cats and dogs as family chattels, you obviously will not both be able to keep your fur babies. The court has formulated their own way of determining who gets to keep the pet based on the pet’s best interests. This means the court considers things like who takes the best care of the pet, who is able to provide the best home for the pet and the pet’s needs. Independent legal advice Each party must receive independent legal advice as part of entering into a legally binding Separation Agreement. To be valid as a full, final and binding settlement, any agreement must be in writing and signed by both parties after independent legal advice and in the presence of their lawyers.. Conclusion If you find yourself experiencing a break up of a long term relationship, the specialist Family Law team at Holland Beckett Law can offer you practical and pragmatic advice with care and sensitivity. We have a team of lawyers who are experienced in negotiating and drafting Separation Agreements, or taking matters to court if needed.