Desiree Hepple

Contact

DDI: +64 7 926 2282
M: +64 27 926 2282
E: desiree.hepple@hobec.co.nz

Desiree joined our Whakātane team in 2015, specialising in Wills, Estate Planning and Estate Administration.

Having lived most of her life in Whakātane, Desiree has a vast knowledge of the Whakatāne area and is well known in the community. Desiree has 34 years local experience in the Trustee industry, specialising in Estate planning, Wills, Enduring Powers of Attorney and Estate Administration.

In her spare time, Desiree and husband Robert and their sons enjoy travelling, the outdoors and catching up with friends and family.

Desiree Hepple's Expertise

Estate Administration

Desiree Hepple's News & Resources

The Last Lost Will – How to find a missing Will?

We often get enquires for missing Wills. (Of course, these are not Wills that we have drafted - those are safely stored in the Holland Beckett deeds safe.) Locating a missing Will can be very stressful and locating the original requires a systematic search. If you know someone had a Will, the search must commence - without it, obtaining a grant of Probate is much more complex. If you have a copy of the will, you may be able to seek Probate of a lost Will. If the will does not surface, could it be that the person never did a Will? If so, an advertisement (discussed below) must be advertised before a grant of Letters of Administration will be issued by the Court. If a Will cannot be found, the estate may have to be distributed according to New Zealand’s intestacy laws. How to find a missing Will: Check personal records and safe places: Search the deceased’s home and personal papers. Look in safes, safety deposit boxes, and any hidden or secure places where important documents might be stored. Family and friends: Sometimes family members or close friends may have a copy of the Will or know where the Will might be. Contact their lawyer: Reach out to the lawyer who may have drafted the Will. Lawyers often (and in our view should) keep copies of their clients’ Wills. High Court: If the Will has been probated (or perhaps it was made and sealed via Court proceedings - more on this another day), the High Court might have a copy. Contact the High Court in the region where the deceased lived. Law Society advertisement: If you are unsure which lawyer might hold the Will, contact the New Zealand Law Society to place an advertisement in newsletters received by all lawyers. You can contact the Law Society to advertise for a will here: NZLS | Advertise for a will (lawsociety.org.nz) As a matter of good practice, a lawyer will not release details of a Will to anyone - that is confidential to the Will-maker during their lifetime and when they have died, it is up to the executors. The above also illustrates the need to talk to your friends and family about your Will, and where to find it should they need to. This can alleviate a lot of stress during what will be a difficult time. For any Estate and Will queries, get in touch with our specialist team at estates@hobec.co.nz.

Wills and new relationships

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. Holland Beckett 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. We provide an obligation free online tool to provide you with further information based on your specific circumstances. Click here to get started

Enduring Powers of Attorney

An Enduring Power of Attorney (“EPA”) 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 EPA 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 Attorney? In New Zealand there are three kinds of Power of Attorney (“PA”) which can be enacted for a range of reasons and to deal with different aspects of your affairs: A standard PA; An EPA for property matters; and An EPA for personal care and welfare. An EPA 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 EPA 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 PA A standard PA 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 PA 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 PA, 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 PA only have effect for a specified time period (for example, the duration of an overseas trip). EPA for property matters An EPA for property matters provides your attorney with the power to make decisions relating to your money and property. An EPA for property matters can be used immediately or only if you lose mental capacity. An EPA 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 EPA, you can have one or more attorneys, or a trustee corporation to act as your attorney. EPA for personal care and welfare matters An EPA 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 EPA for personal care and welfare matters can only come into effect if you lose your mental capacity. For this kind of EPA you can only have one individual as your attorney, you cannot appoint two persons or a trustee company. You can however, appoint successor attorneys. EPA and Trusts None of these legal documents are particularly useful when it comes to Trusts. An EPA 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 EPA 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. 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 for assistance.