Desiree Hepple

A Power of Attorney is a legal document appointing a person or people to act on your behalf should you become unable to make decisions for yourself. There are two types of powers, “standard” and “enduring”. Standard Powers of Attorney (“PA”) A standard Power of Attorney is required when someone is unable to sign a document themselves.  A person may be unable to sign due to unavailability (out of the country or unwell), or physical impediment.  PAs are frequently used when there is a need for documents to be signed efficiently on behalf of someone else (ie. a business arrangement).  The PA can give broad signing powers to the Attorney, or can restrict those powers to only certain matters (ie. signing a particular contract). A standard PA is best used for temporary purposes, (eg. the duration of an overseas trip), and ceases immediately upon revocation, death, or when the person loses mental capacity. Enduring Powers of Attorney (Property) (“EPA (Property)”) An EPA (Property) provides your appointed attorney with the power to make decisions relating to your money and property, and “endures” after you lose mental capacity.  You may appoint more than one attorney to act at one time, including a trustee corporation.  An EPA (Property) can be effected immediately, or used only when you lose mental capacity.  An EPA (Property) continues in effect until you revoke your Attorney’s power, or you pass away. Enduring Powers of Attorney (Personal Care & Welfare) (“EPA (Personal Care)”) An EPA (Personal Care) provides your appointed Attorney with the ability to make decisions relating to your health and welfare, such as choosing a rest home or medical treatment.  While only a single private individual can be appointed at any given time, you may appoint successor attorneys.  An EPA (Personal Care) will only come into effect when you have lost the required mental capacity to make decisions surrounding your personal care and welfare. Enduring Powers of Attorney and Trusts An EPA cannot be used to make trustee decisions or deal with Trust property.  Trust property is not the personal property of the trustee, and therefore a trustee does not make decisions in their personal capacity. However, EPAs may become useful when an incapacitated trustee needs to be removed from a Trust, and there are no continuing trustees who are able to appoint a replacement.  In these instances, the person holding the EPA for the incapacitated trustee may remove the incapacitated trustee and appoint a new one. Why do you need Enduring Powers of Attorney? If you lose your mental capacity, and therefore your ability to make your own decisions, no one, not even your spouse, will be allowed to manage your affairs on your behalf unless authorised by you via an EPA.  Without an EPA, 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 you lose mental capacity without an EPA in place, your family or next of kin will need to apply to the Family Court for orders under the Protection of Personal and Property Rights Act 1988 to appoint a property manager and a welfare guardian to make these decisions for you.  This process is both more costly and time consuming as it involves ongoing obligations and continued review of orders. Having EPAs prepared now will ensure that you have full power over the appointment of your Attorneys, and will save your loved ones from the stress and additional cost of applying to the Family Court. How do I get an EPA? You will need to contact a lawyer to prepare your EPAs, who will guide you through the process.  They will ask you for the following information: Who you want your Attorney to be. Select the Attorney carefully and consider whether you would like anybody else to have oversight of your Attorney’s decisions.  It is vital that the person you select is one that you trust to understand and respect your wishes, and make important decisions that will affect you. Any conditions to your EPA, provided these are practical and realistic (eg. whether you want back-up Attorneys, and the scope of the decisions your Attorney can make). In order for your EPAs to be valid, a lawyer must advise you on the full document and witness your signature. To get the process started, get in touch with Holland Beckett and our EPA experts will assist you.

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. 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. Some key responsibilities include: Find and locate the Will; Understand the asset pool of the Willmaker eg. where they bank, do they own any vehicles or property; Do you know the immediate family of the Willmaker and those who should be notified; Make any relevant and important decisions in respect of the estate; Manage all decisions and disagreements around the estate. 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. 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 Willmaker, 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 into 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 the estate’s assets are generally not distributed until the expiry of six months.  In practise, 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 Willmaker.  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. When all estate administration steps are complete and the executor is holding the assets ready to distribute, they become a trustee similar to a trustee of a family trust with duties and obligations under the Trusts Act 2019. Often this period of trusteeship is short, as the Will stipulates distribution out to beneficiaries. The trustee’s role can continue depending on the wording of the Will. Executor expenses In New Zealand, the general rule is that an executor cannot charge for their time unless there is a specific clause in the Will allowing them to do so.  However, executors are entitled to reimbursement for their reasonably incurred expenses.  This could include if you were to pay the insurance for an estate property or a rates bill to avoid a late fee. Executor’s decision making Executors are appointed by the Willmaker to carry out their intentions.  It is important to always consider the intention and wording of the Will before making any decisions.  Those close to the deceased will want to be involved in any decisions and this should be welcomed.  The executor will work as a neutral person making sure that the wishes of the deceased are upheld eg. if they want to be cremated making sure that this is done, or the specific bequests are carried out. Where there are intimate decisions that need to be made eg. where to bury the body and the Will will not necessarily specify this – it is the role of the executor to facilitate discussions and agreement between the whānau. Can I get out of it? If you are unable or unwilling to be an executor, the next nominated person in the Will can be appointed.  You will need to renounce before you take any steps to administer the estate. If you have accepted the role as executor and the estate administration is ongoing, you cannot simply retire, but rather you have to apply to the Court to be removed (and replaced if required). The role as executor will continue for a long period of time, for example where the estate holds a property and a beneficiary has a life interest to live in it, or there are minor children not due to receive their inheritance until a certain age.  If this is the case and you no longer want to be an executor, then provided the estate administration steps have been completed (gathering of assets, paying debts), then it is possible for an executor, who is now technically a trustee of the estate, to retire and another to be appointed by Deed rather than involving the Court.  Frequently we see executors retire in this situation and an independent trustee or trustee company is appointed to continue the ongoing management of the estate and manage the obligations to beneficiaries. What is a Statement to Accompany a Will or a Memorandum of Wishes and should I read it A Statement to Accompany a Will is a statement made by the Willmaker explaining any decisions made in the Will.  It provides more of an understanding around what the intention of the Willmaker was at the time of drafting and signing the Will. The Memorandum of Wishes is similar to the Statement whereby it gives the executor or trustees further instructions with the Will and helps give insight into what decisions they want to be made.  Neither of these documents are legally binding, however, it is useful to read them and consider what they are wanting to achieve. How to get important information The best way an executor can obtain information about the Willmaker’s assets and liabilities would be before death.  If you find yourself aware that you are an executor of an estate, have a conversation with the Willmaker. Where do they keep their bank statements or passcodes if you need to locate them, who is the property insured with?  Make sure that if there are any updates that you are aware of these. It pays to have an updated Will, necessary statements or instructions for the executor and to have regular conversations about what you would like to have happen when you die. Talk to our succession and estates team about your options and to obtain the right advice for you.

A Will is perhaps the most important piece of paper you can leave behind to support your loved ones.  Why do you need a Will, what happens if you pass without a Will, and how best should you prepare your Will for your circumstances? Download our Wills Month Information Pack. September is Wills Month. Holland Beckett offer a free “Simple Will” if you leave a gift to charity in your Will. Speak to the Holland Beckett Succession and Estates team about Wills Month and what charity giving options would best suit you. Contact the team on estates@hobec.co.nz or call our offices on 07 578 2199.

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 succession and estates team at estates@hobec.co.nz.

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 succession and estates team.