Jacqueline Bell

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.

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.

This article was published in the New Zealand Law Journal, where our family team comments on a recent Court of Appeal case where ongoing maintenance was awarded to a de facto partner for an extended period of time, and explains why the current maintenance system needs an overhaul. In March 2020, the High Court heard the matter of Kwok v Rainey [2020] NZHC 923. It was a substantive hearing on the near full gamut of relationship property claims possible under New Zealand’s relationship property regime, with some highly interesting findings (particularly in relation to costs as damages, at [244] to [264]). However it had one concerning outcome: it found that Mr Rainey was liable for maintenance to Ms Kwok of over half his yearly income for a period of 3.5 years, which was almost half the length of the relationship itself. On appeal (Rainey ato David Rainey Family Trust v Kwok [2021] NZCA 199), this ruling was overturned, and Mr Rainey was ordered to pay the High Court level of maintenance for a period of two years, and a vastly reduced maintenance sum for a further nine months. This article posits the Kwok v Rainey is a clear example of why the current regime can produce unjust outcomes, why reform is needed and why Family Income Sharing Arrangements (FISAs) may provide the answer. This case illustrates both the inadequacies of the current law and the injustice that can occur when it is improperly applied. Facts Wan Lan Kwok, a Hong Kong resident, met David Rainey, a builder from Tauranga, when she was in New Zealand in August 2008. There was evidence that Ms Kwok was working (albeit without a visa). Both were in their mid-forties and had come from previous long-term relationships with two adult children each. They quickly developed a relationship. By 1 March 2009, Ms Kwok was living and working with Mr Rainey in New Zealand. When granted a resident’s visa on the basis of her partnership with Mr Rainey in August 2011, Ms Kwok relocated to New Zealand. During the relationship Ms Kwok assisted Mr Rainey on building sites with basic labour from time to time and was paid a wage by his company. Mr Rainey was also employed by his company as a builder. Mr Rainey, having seen his assets halved on two occasions as a result of relationship property proceedings, was committed to the relationship but wanted to protect his own assets. After the couple had lived together for approximately two and a half years, Mr Rainey sought advice from the law firm Gascoigne Wicks (GW) as to how to do so. By this stage Mr Rainey had purchased a section in Tauranga where he intended to build a house. Based on GW’s advice, Mr Rainey set up a trust which was to own the section. Mr Rainey then built a house on the section and they lived there as a couple until the relationship came to an end in September 2016. Both parties were of modest means. Ms Kwok was 55 at the time of the hearing and had lived in New Zealand on and off for 12 years. Mr Rainey was 54, and unable to work full time as a builder after battling cancer. Mr Rainey has had two previous marriages, and had two adult children with his first wife. Mr Rainey and Ms Kwok had no children together.  In October 2018, Ms Kwok had received an interim maintenance order by the Family Court of $200 per week for six months.  In March 2020 at the High Court hearing, Ms Kwok sought a half share in the house (held in trust), the current account of Mr Rainey’s building company, $785 of maintenance per week and a half share of the family chattels. Overview of present law  Post-separation maintenance is governed by the Family Proceedings Act 1980 (FPA). The overarching statutory policy is that neither party to a de facto relationship is liable to maintain the other after ceasing to live together (s64), A ‘clean break’ principle is imposed, which encourages former partners to become self-sufficient. There are statutory exceptions to this general policy. The relevant sections for determining a de facto maintenance application are ss 64, 64A, 65, 66, 69 and 70. Principally, s 64 deals with maintenance in a de facto relationship (as was the case in Rainey v Kwok). This section provides that each partner is liable to maintain the other only to the extent necessary and where the other partner cannot practicably meet their own reasonable needs because of specified circumstances (s64; s64A). Sections 69 and 70 provide the Court with a broad discretion as to how payment will be made and how it is to be calculated. However, these wide powers are then tempered by ss 64 and 64A, which set out the only circumstances in which one party will be liable to maintain the other after the relationship ends. Section 65 then prescribes matters that the Court must have regard to in determining the amount payable, and certain kinds of conduct and misconduct may also be taken into account (s 66). Ultimately, the Court can consider any relevant circumstance in determining if the maintenance threshold is met (s64; s64A), and must consider factors relating to both payer and payee’s means and financial responsibilities when determining quantum (s65). It cannot be a punishment for the breakdown of the relationship (G v C FAM-2007-004-2155/2156, 8 October 2008 as cited in C v G [2010] NZCA 128 at [17]). Having a broad discretion certainly provides the tools for a fact specific result, accepting that there is no one size fits all in maintenance, However, in the writers opinion, the present system also can produce unjust results. Interestingly, case law on interim maintenance has developed a justice inquiry (Ropiha v Ropiha [1979] 2 NZLR 245 at 247; Cooper v Pinney [2016] NZHC 1633 at [20]), but this ‘sanity check’ has not developed in the final maintenance inquiry. The High Court judgment Thomas J ordered that Mr Rainey pay $785 per week for (in effect) 3 and a half years. That was almost half the length of the entire relationship, and in circumstances of both parties being of modest means, both in their forties when they met, no children together and Ms Kwok taking no steps to obtain employment in the four years between separation and the hearing. Her Honour, citing Slater v Slater [1983] NZLR 166 (CA) at 174, held that parties cannot be expected to be self-supporting until they have received their share in relationship property. The appeal The High Court decision was overturned in part. The Court of Appeal (Cooper, Gilbert and Goddard JJ) held that a reasonable period for Ms Kwok to become self-supporting would be two years, had she had her relationship property. Because Ms Kwok did not have her share for four years (due to the High Court litigation), a period of two years at $785 per week and nine months at $200 per week was ordered. The Court also held that her Honour was wrong to impose the inflexible principle of requiring relationship property before partners can be expected to support themselves. Worryingly, the Court of Appeal did not think it was necessary to determine Mr Rainey’s actual income because he could earn a “reasonably good income” as a builder. When dealing with parties of modest means (not the Mr Clayton’s of the world:  see Clayton v Clayton (Vaughan Road Property Trust) [2016] 1 NZLR 551, [2016] NZFLR 230, [2016] NZSC 29)) actual affordability should certainly be a relevant circumstance to take into account (s65). That aside, the maximum actual income for Mr Rainey referred to in the decision was approximately $80,000 per annum. Payment of $785 per week equates to approximately $40,000 per annum. The Court therefore considered it reasonable for Mr Rainey to pay in effect 50% of his income to Ms Kwok whilst paying all outgoings and expenses for the family home (including the mortgage). Ms Kwok also benefitted from the delay caused by litigation by the increase in value of the family home. Issue: unfair and uncertain Despite the broad discretion, in practicality, the Court’s inquiry is very applicant/payee focused. Certainly, where a more traditional relationship exists, the current maintenance provisions do the job. However, it is the writer’s view that where the ‘payer’ is not a high-income earner, the outcome can cause real financial harm. The Court’s inquiry does not seem to place enough weight on the functions of the relationship and actual affordability for the respondent. Under the FPA, it must still be reasonable for the respondent to pay maintenance and for it and be causally connected to the relationship. It can lead to unpredictable outcomes.  In Rainey, Ms Kwok claimed that her age and inability to speak English prevented her from being able to gain employment.  Yet those factors existed when she first came to New Zealand before meeting Mr Rainey, and she had taken no steps to improve her circumstances post-separation. Proposed Reform In 2017, the Law Commission undertook a review of the relationship property regime in New Zealand and sought to modernise it in line with New Zealand’s changing society. Ultimately, the Law Commission recommended that s 15 of the Property (Relationships) Act 1076 (PRA), ss 63, 64, and 82 of the FPA be repealed and replaced with a FISA regime. A partner would only be entitled to a FISA if their relationship was 10 years or longer (unless the parties had children together) or the applicant’s contributions to the relationship either advanced the respondent’s career or was at the sacrifice of the applicant’s career. Subject to orders for adjustment where serious injustice is caused, there would be a cap on the time period for which maintenance could be paid (for up to five years) and a statutory formula for calculation of payments. The formula is based on the family income received during the relationship (as opposed to future earning capacity). A key focus for FISA is ensuring that partners are only entitled to FISA if their financial need is connected to the relationship. The Commission commented that if it was not, it should be the State’s responsibility to financially support that person. In 2019, the Government responded to the FISA proposal, accepting that the current PRA framework is no longer fit for purpose. It declined to give effect to the recommendations at the time but will consider them concurrently with the Law Commissions review of succession law. The Law Commission is currently reviewing submissions on succession. The Court of Appeal in Rainey v Kwok made no specific comment on the social policy of maintenance, the need for justice in maintenance orders or the Law Commission’s PRA recommendations. This despite hearing submissions on the points as comparison tools for the Court’s maintenance assessment. Will FISA work? In effect, FISA will work like the Inland Revenue’s child support scheme via a default implementation system. Like the child support scheme, FISA is recommended to have set calculation formulas that can apply immediately on separation but be adjusted by the Court if necessary to prevent injustice. In the writers opinion, the FISA system is a step in the right direction to anchor the core principle of a causal connection between a party’s needs and the obligation to support . The certainty provided by predicable eligibility characteristics (length, children, contributions – albeit with some flexibility as is necessary) is a key benefit. The predictability of the scheme also paths the way for parties to resolve their own maintenance issues without necessarily needing to use the clogged justice system or incur legal fees. The most beneficial aspect is the heightened eligibility threshold. Anecdotally, the writer knows many relationships that easily meet the de facto threshold (s2D of the PRA) but are not of such a level of seriousness where the parties commit to financially supporting one another on separation, particularly for relationships in the younger adult generation. Had the FISA scheme been in place, Mr Rainey may have avoided liability to maintain Ms Kwok. This would have been a fair result given that this was a late-in-life relationship for parties with no children together and modest means. Next steps The legal profession now eagerly awaits for the Law Commission finishing its review on succession law. With the Government’s acknowledgement that the system needs to change, it is hoped that a new system can be predictable, user friendly and, above all, only applicable in circumstances where the seriousness of the relationship justifies ongoing support. This article was published in the December 2021 edition of the New Zealand Law Journal

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. When should you appoint a testamentary guardian and what do they do? 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.