Get Your Enduring Powers of Attorney Sorted Out

Having an Enduring Power of Attorney (EPA) is as vital as making sure you have a Will. Whether you’re 18 or 80 years old, you never know when you may need to have a responsible person to make decisions on your behalf.

What is an EPA?

An EPA is a set of two legal documents, one for personal care and welfare, and the other for property. They appoint an attorney to act on your behalf to carry out your wishes at times when you may lack the mental capacity to do so yourself or, in the case of property matters, at your discretion. Lack of mental capacity can be caused by, for example, a brain injury, an accident, or a medical condition such as a stroke or Alzheimer’s.

It’s important that you appoint someone you trust, and who understands you, to be your attorney. It can be difficult to talk about, but you should consult with your family about your EPAs so that everyone knows what to do if you become unwell and can’t manage your affairs by yourself.

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Looking After Your Inheritance

Keep it protected

For many people a gift by Will (also known as a legacy) from a relative or friend can be very significant – both personally and financially. The relative or friend wants to show you kindness but also usually wants the gift to be of real benefit to you personally. The gift is not intended to benefit other parties such as creditors, the Official Assignee or a de facto partner, however, unless it’s protected, that can be the unintended outcome.

Relationship property claims

If you are a beneficiary under a Will and you’re married, in a civil union or de facto relationship, the gift (under the Will) is separate property (as opposed to relationship property). The difference is important because if your marriage or relationship breaks down or you die, your spouse or partner cannot claim half of the gift (or its proceeds) because it’s separate property which is not subject to the equal sharing regime under the Property (Relationships) Act 1976.

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Will Your Business Survive if You Don’t?

Planning is key

Most owners want to ensure their business will continue after they have died. Often they want their family to be able to carry on the business. A common form of business in New Zealand is the family farm and this poses particular problems all of its own. Most people know that they need to have an up-to-date Will and Enduring Powers of Attorney (EPA) to cope with any unexpected events. However, there is a lot more planning that you should do as well.

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Trusts Bill

Some key proposals

In late 2013, the Law Commission completed a report recommending that a new Trusts Act replace the Trustee Act 1956. The public consultation phase began last December with the release of the exposure draft Bill. It is intended that the new legislation will be the primary source of trust law in New Zealand. We outline below some key proposals.

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Definition

Most trusts in New Zealand are established with a written trust deed or other document such as a Will. These are known as ‘express trusts.’ The Bill only applies to express trusts. Characteristics of express trusts are defined in the Bill as:

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Increase in Claims on Estates

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How you can help avoid a claim on your own estate.

In December 2015 the Sunday Star Times reported on a dispute amongst the members of the Ropati family in respect of their mother’s estate. The article contains the following statements:

“Figures released by the Ministry of Justice show that the number of disputes over wills rose by nearly a third in just two years … In 2012 there were 252 contested wills, and last year the figure reached 325 … Claims against estates can be brought by widows, widowers, de-facto partners, children, step-children and grandchildren … A claimant has to prove that the deceased failed to discharge a moral duty to provide for him or her … In one extreme case, two sisters battling over their mother’s $80,000 estate took their fight to the Supreme Court … The dispute between Judith Guerin and Marta Hayes lasted more than five years.”

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Can Marriage Equality Affect a Couple’s Wills? – Check your Will hasn’t been revoked when you marry

When the changes to marriage law came into effect on 19 August 2013, we were asked an interesting question, “If a couple who were in a civil union decide to ‘upgrade’ to a marriage, will that mean that their Wills are cancelled?” It seems that the risk of accidentally revoking your Will by getting married is no longer reserved only for heterosexual couples. Same-sex couples now have access to the same unintended consequences of marriage.  Continue reading “Can Marriage Equality Affect a Couple’s Wills? – Check your Will hasn’t been revoked when you marry”