Family protection and wills

The wise and just will-maker

I need to make a will but I do not want to leave my estate to my son as I never see him. I also do not want to leave my estate to my stepchildren. What can be done?

In some parts of the world, a will-maker can leave their assets to whomever they want, whether that be their children, a distant relative or to the local cats’ home. In New Zealand, however, this is currently not the case. Continue reading “Family protection and wills”

Solving relationship property issues by mediation

A cost-effective alternative to court

After separating, you could find yourself at loggerheads with your former partner or spouse on exactly how all property should be divided between you. Negotiations may be bouncing between your lawyers, with no common ground achieved. Without agreement, you could file court proceedings but learn costs would increase dramatically. As well, it could be years before a judge can give a decision on how your property will be divided.

Mediation, on the other hand, could be arranged within weeks. It offers a practical alternative to reach a conclusion on how property should be divided between you and your former partner.

Continue reading “Solving relationship property issues by mediation”

How are enforceable penalties set out in contracts?

Contracts are commonplace in business and life. A well-drafted contract can provide certainty and clarity for businesses and others by creating legal obligations for each party to do what they say they will. But what if a party to a contract doesn’t do what they promised they would? Are you allowed to penalise that party for not fulfilling their obligations under the contract? We will explore the enforce-ability of so-called ‘penalty clauses’ in light of a recent decision in the Court of Appeal.

What is a penalty clause?

It is common for businesses to try to reduce their risk of suffering a loss under a contract. One way businesses try to minimise their risk is by including a clause in the contract that requires money to be paid to them to compensate for loss if the other party doesn’t do what they promise.

Continue reading “How are enforceable penalties set out in contracts?”

Going out on your own

Company structure or sole trader for business?

You have decided to quit your job, and go out on your own to run your own business. Do you form a company or trade in your own name? We outline some of the pros and cons of these two options to help you make a decision.

Trading through a company

Brown Biscuits Limited: owner Jackie Brown

Brown Biscuits Ltd (BBL) is a separate legal entity. There are some significant advantages of trading through a limited liability company.

Continue reading “Going out on your own”

Property Briefs

There have been a number of developments around property investment by overseas investors and also on residential tenancies.

If you are an overseas investor or a landlord, you should ensure you are up-to-date with the latest changes and/or proposals.

Update on Overseas Investment Act 2005

An overseas investor attempting to circumvent the requirements of the Overseas Investment Act 2005 has received the first criminal conviction under that legislation. In February 2020, Dr Won Joo Hur was fined $100,000 for falsely stating to the Overseas Investment Office (OIO) that a property was not purchased on his behalf and providing a false loan document to support his version of events.

Continue reading “Property Briefs”

Gypsy day is all go

Gypsy Day will go ahead as planned this year, but with strict controls to help prevent the spread of COVID-19, Agriculture Minister Damien O’Connor announced today.

On June 1 each year, the first day of the dairy season, a large number of dairy farming families, sharemilkers, contract milkers and employees move to new farms to commence new employment and milking contracts. This movement of people, their possessions, livestock and machinery is known as ‘Gypsy Day’ or ‘Moving Day’. “This annual movement is a critical part of the dairy industry – an industry that contributes over $18 billion dollars a year in exports to our economy and provides jobs for around 46,000 people in our rural communities”, Minister O’Connor said. “It’s also an industry that will play a critical role in New Zealand’s economic recovery after COVID-19, so it was vital that Moving Day went ahead.

Since the Alert Level 4 lockdown was announced, and dairy farming was deemed an essential service, the Government has been committed to finding a way to enable it to proceed. “The Government has been working with sector leaders from organisations including DairyNZ, Fonterra, Federated Farmers and FMG to find solutions which work for those in the sector and protect the economy without jeopardising anyone’s health and safety. MPI then worked with the Ministry of Health and MBIE and found solutions that allow Moving Day to proceed under any alert level.   “Activities need to be restricted to just those that are absolutely necessary though and any movement around New Zealand must ensure people’s “bubbles” are maintained”.

DairyNZ say this announcement will be a great relief to farmers. “Moving Day is a key time in the dairy calendar so it’s great that a solution has been secured with Government which will provide peace of mind for thousands of farmers. It means we’ll move into the next dairy season in a way that keeps them and the public as safe as possible,” said DairyNZ chief executive, Dr Tim Mackle. “Industry groups will be providing further guidance and information to support those dairy farmers who are shifting this season, including ensuring their moves are safe and within their bubbles”. Minister O’Connor says New Zealand farmers are no strangers to disease eradication programmes with strict movement controls. “There were already really strong precautions in place around Moving Day as a result of the Mycoplasma bovis Programme. This gives me confidence that farmers will apply very careful behaviour to Moving Day. “I want to thank all of those sector groups and famers across the country who have worked together and shared some really solid and innovative thinking about potential solutions which will allow these crucial farm movements to go ahead safely and efficiently.”

Latest COVID-19 legal update

cld

Commercial lease disputes

Many leases signed after 2012 contain a clause which permits the tenant to pay a reduced rent during period in which they are “unable to gain access to the premises to fully conduct the Tenant’s business.” The expression fully conduct is important where a business may be able to operate at COVID alert level three but not in its usual manner (such as only being able to deliver rather than have customers enter the premises). We have seen Continue reading “Latest COVID-19 legal update”

Agreement for Sale and Purchase of Real Estate

10th edition contains significant changes for buyers and sellers

The Auckland District Law Society and the Real Estate Institute of New Zealand (ADLS & REINZ) are the authors of the most common template Agreement for Sale and Purchase that is used by the majority of lawyers and real estate agents throughout New Zealand. In November 2019, ADLS & REINZ released the 10th edition of the agreement with changes that impact and benefit both buyers and sellers.

The 10th edition makes a number of changes to the agreement that include:

  • Simplifying the terminology so it is consistent with the wording in the Land Transfer Act 2017
  • Clarifying the obligations of the parties when fulfilling conditions, and
  • Setting a clear distinction between chattels that have an operational function and those that don’t.

Continue reading “Agreement for Sale and Purchase of Real Estate”

Adapting the agreements can help property developers

Helps mitigate risk

There has been recent media attention on the way property development contracts are structured following the cancellation of a number of Agreements for Sale and Purchase by the developers of a project in Tawa, just north of Wellington. Reportedly, the developers said that without being able to cancel the existing agreements, the companies establishing the development would have otherwise faced liquidation and the development would have been halted.

In this article we look at how agreements can be adapted to suit the specific characteristics of a property development and how they can help mitigate the risks (and costs) to developers. As well, we address some of the questions you should ask to determine where the risks and burdens of the development will fall.

Continue reading “Adapting the agreements can help property developers”

Claims on an estate

How much can a disinherited child expect?

The Family Protection Act 1955 allows children to bring claims against the estate of a deceased parent on the basis that their parent did not adequately provide for their ‘proper maintenance and support’. Exactly what constitutes ‘proper maintenance and support’ is the subject of considerable litigation, as well as extensive commentary in the media.

Since a trio of Court of Appeal decisions in the early 2000s, a general understanding has emerged that awards under the family protection legislation can be quantified by referring to a percentage of the relevant estate. It has long been said that a financially-stable adult child might expect to receive between 10%–20% of the estate of their deceased parent, depending on a number of factors including the size of the estate and the position of others under the will or those people who are entitled to make a claim. In many cases, the 10%–20% threshold has become an informal benchmark when assessing the position of a financially-stable adult child making a claim against a modest, but not insignificant, estate. Continue reading “Claims on an estate”