Sarah Burns

The Trustee Act 1956 reigned for over 60 years before the Trusts Act 2019 (“the Act”) came into force. The Act aims to simplify Trust-related issues by providing mandatory and default administrative trustee duties. One scenario under the spotlight is the process of removing an incapacitated trustee. Many Trusts that were established in the ‘Trust boom’ around 20 years ago may now be faced with a trustee who is losing capacity. This can be a tricky situation when trustees are trying to deal with Trust assets, especially in a family context. Fortunately, a Court order is no longer needed to remove a trustee. Trustees can now exercise a compulsory removal of a trustee if they lose capacity (s104 of the Act). This can apply regardless of what your Trust Deed specifies, or fails to specify, in respect of removing an incapacitated trustee. It is then the question of who has the power to remove that trustee which is a case of reviewing the Trust Deed together with the Act. Removal of an incapacitated trustee is a compulsory ground of removal available to the Appointer and if the trustee has lost the capacity to perform the functions of a trustee then it would make sense to remove them. Review your Trust Deed first Your Trust Deed may specifically nominate someone with the power to remove trustees. That person may remove a trustee in accordance with their Trust powers or by using s104 of the Act. The Act’s processes may be more suited in some circumstances. If the Trust Deed is silent on the removal of an incapacitated trustee then follow the Act The Act’s process is used to account for the situation that the Trust Deed has not anticipated. In reality this is quite common and a good incentive to review or amend your Trust Deed. The Act states if the nominated person in the Trust Deed is unwilling or unable to remove the incapacitated trustee then the remaining trustees can do so. If there are no remaining trustees or they are unwilling to act, then further individuals may be granted the power to remove. They can include: a property manager appointed under the Protection of Personal and Property Rights Act 1988 to act as manager of the trustee’s property, or; a person holding an enduring power of attorney over the property of the incapacitated trustee, or a liquidator of a corporate trustee that is in liquidation. A medical certificate confirming that the trustee of concern no longer has the capacity to carry out the role of a trustee will form the basis of the documentation required to give effect to the removal. Holland Beckett Law can guide you through this process.

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.

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.