willis-legal

Supporting Clients Through Separation

Tue, 03 Mar 2026 01:09:38 GMT

Willis Legal Now Accredited with JustFund

Separation and relationship property matters can be emotionally and financially demanding, and for many people the cost of legal support becomes another source of stress at an already difficult time. To help ease that pressure, Willis Legal is now an accredited partner of JustFund, a New Zealand provider offering flexible funding for clients navigating separation and relationship property issues.

A practical option when upfront costs are a barrier

JustFund offers eligible clients a flexible line of credit to cover legal fees and related expenses throughout their relationship property matter. Approval is based on the expected settlement rather than income or credit history, which can make it a realistic option for people who may not have immediate access to funds or whose financial position has changed during separation.

Importantly, the line of credit is repaid only once a settlement is reached. This can provide breathing room at a time when finances are often uncertain, allowing clients to focus on progressing their matter rather than worrying about how to pay for each step along the way.

Why this matters for our clients

We regularly meet clients who fall into the space between legal aid eligibility and being able to comfortably fund their own legal costs. For some, this can delay important decisions or prevent them from seeking advice when they need it most. Partnering with JustFund gives our clients another pathway to access quality legal support without the immediate financial burden.

It also aligns with our commitment to ensuring people can move forward with clarity, confidence, and the right advice behind them.

How the process works

You discuss your situation with your Willis Legal lawyer to see whether JustFund may be suitable.
If appropriate, you can apply directly to JustFund for a line of credit.
Once approved, JustFund pays legal fees as your matter progresses.
Repayment occurs after your relationship property matter is resolved.

Learn more

If you’re navigating a separation and would like to understand whether this option could help, our team is here to talk it through. You can also find more information at www.justfund.co.nz.

Spotlight on Marta Black

Wed, 04 Feb 2026 09:33:21 GMT

We’re pleased to shine a light on Marta Black, an Associate in our Dispute Resolution team.

Since joining Willis Legal in 2022, Marta has become a valued member of our Dispute Resolution team. She is known for her calm, thoughtful approach, and her ability to bring clarity to even the most complex disputes. Marta works across a wide range of civil litigation, with a particular focus on contentious trust matters and complex relationship property disputes. These areas often involve significant assets and sensitive family dynamics, and Marta is recognised for the steady guidance she brings to her clients throughout the process.

Marta appears regularly in the range of courts in the civil jurisdiction. Before entering practice, she worked as a Judge’s Clerk at the High Court. That experience gave her a strong foundation in legal analysis and a close understanding of how complex decisions are made, something that continues to shape her work today.

When asked what motivates her, Marta says she is driven by the challenge of providing accurate, timely, and practical advice. She enjoys the intellectual side of litigation and the satisfaction of solving difficult problems. “ I enjoy a complex puzzle and looking at a problem from all angles to find a solution that delivers results for our clients ,” she says.

That mindset has seen her navigate some memorable matters, including acting in a contentious company dispute involving prejudice to shareholders, which ultimately led to a formal proof hearing in related relationship property proceedings. Another standout was a six‑week breach of contract trial in Auckland. It was hard‑fought, strategically demanding, and ultimately successful.

Outside work, Marta enjoys the best of Hawke’s Bay life. She loves spending time with her young family and their two beagles, heading to the beach, and embracing her new hobby of camping (or glamping, as she admits with a smile).

When asked what she finds most rewarding about her role, her answer is simple: “ Interesting work, with good people .”

New Year, Updated Plans

Wed, 28 Jan 2026 09:56:35 GMT

Why it’s worth reviewing your will, trust and Enduring Powers of Attorney

The New Year is a natural moment to pause, reset, and look ahead. Many of us use this time to set goals or make plans for the months to come. It’s also a good opportunity to check in on the legal documents that protect the people and assets that matter most to us. Wills, trusts, and Enduring Powers of Attorney are often created with the best intentions, then quietly filed away and forgotten. However, life and plans change, and your legal documents should change with it.

Why reviewing matters (even if you already have legal documents)

You may already have a will, a trust, or Enduring Powers of Attorney in place, but that doesn’t mean they still suit your current circumstances.

A lot can shift in just a few years, such as:

Marriage, separation, or blended family arrangements;
Children growing up, or the arrival of new grandchildren;
Friends and family relocating or dynamics shifting;
Buying or selling property and other assets;
Changes in your business or new investments.

Relationship changes affect how your assets are treated, so it’s particularly important that your documents reflect your current situation. Laws evolve too, which means older documents may no longer offer the protection you expect. A regular review helps ensure everything still aligns with your wishes.

A quick refresher: What each document does

These documents don’t need to be complicated. At a high level:

Will : Sets out who manages your estate, receives your assets and cares for your children, if you pass away.
Trust : Helps protect and manage assets over time, often for the benefit of family members or future generations.
Enduring Powers of Attorney : Appoints people that you trust to make decisions on your behalf, if you become unable to do so. Decisions in relation to your personal care and welfare (medical), and/or for your property and finances.

Understanding the purpose of each document makes it easier to see when updates might be needed.

Common gaps we see

Even well‑prepared plans can become outdated. Some of the issues we regularly come across include:

Wills that no longer reflect current family dynamics;
Wills that are now void, due to a new marriage;
Executors or attorneys who have moved overseas, passed away, or are no longer the right choice;
Guardianship choices that haven’t been revisited as children grow;
Trust structures that don’t match how assets are now owned or used;
No Enduring Powers of Attorney in place at all, leaving families without clear authority in an emergency;
Digital assets (such as online banking, social media, or cloud‑stored information) not accounted for.

These gaps can create stress, delays, and unnecessary cost at a time when clarity is most needed.

The benefit of reviewing now

A review gives you peace of mind. It ensures your wishes are clear, your family is protected, and your plans still make sense for your life today. It also reduces the risk of future disputes or confusion.

A review ensures that your chosen executors or attorneys know their role, so they’re prepared, if ever needed.

A gentle nudge to get started

You don’t need to rewrite everything. Often the first step is simply checking whether your documents still reflect your current situation. If it has been a few years, or if life has changed, it’s worth taking another look.

If you’d like to make sure your legal documents still align with your wishes, our team at Willis Legal is here to help you review, update, and move into the year ahead with confidence.

Buying or Selling in 2026? Here’s How to Prepare Early

Wed, 21 Jan 2026 10:07:37 GMT

A new year often brings fresh plans and new possibilities. For many people, that includes thinking about a change in where, or how, they live. Whether you are planning to buy your first home, move somewhere new, or sell a property in 2026, good preparation starts well before an agreement is signed.

Property transactions often take longer than people expect. There are documents to review, decisions to make, and steps that need to happen in the right order. Starting early gives you more control, more confidence, and fewer surprises along the way. It is all about setting yourself up for a smoother journey.

If you are thinking about selling

A successful sale begins with understanding your property’s paperwork. Taking time now to check a few key areas can save you stress later.

Title details: Easements, covenants, and other restrictions can affect how a buyer views your property. Knowing what is on your title helps you prepare for questions before they arise.
LIM and property file information: Councils hold a lot of information about your property. Ordering these documents early gives you a clear picture of what a buyer will see.
Building work and consents: If you have made alterations, it is important to confirm that the right consents and code compliance certificates are in place. Missing paperwork is one of the most common causes of delays or last-minute renegotiations.

Identifying any issues early means you can deal with them on your terms, without pressure once an offer arrives.

If you are thinking about buying

Buyers benefit just as much from early preparation. A little groundwork now can make you a stronger, more confident purchaser when the right property appears.

Understand the agreement: Sale and purchase agreements are legally binding. Knowing the key terms, conditions, and timelines ahead of time helps you move quickly without feeling rushed.
Get finance ready: Talking to your mortgage broker or lender early means you will understand what conditions may apply and how much flexibility you have.
Plan your due diligence: From building reports to title checks, due diligence is easier when you are not racing the clock. Early advice helps you know what to look for and what questions to ask.

The biggest advantage is getting legal advice before you sign, not after. It is about being informed and prepared.

Why timing matters

When people leave things too late, they often end up making decisions under pressure. Important details get missed. Red flags in contracts or property information go unnoticed. And what should be an exciting life moment becomes unnecessarily stressful for you and your whānau.

How early legal advice helps

Starting the conversation early means you can:

Understand risks and obligations before you commit.
Get clarity on timelines, conditions, and key milestones.
Move forward smoothly once you are ready to buy or sell.

It is all about giving yourself the best chance of a straightforward, stress-free experience.

Thinking about a move this year? Let’s talk

You do not need to be ready to transact to get in touch. A short conversation now can save time, cost, and uncertainty later. If a property move is on your radar for 2026, our team is here to offer clear advice and practical guidance every step of the way.

Start 2026 with a Clear Legal Game Plan

Wed, 14 Jan 2026 10:16:49 GMT

The start of a new year is a natural time to set direction, reset priorities, and think about where you want your business to head. Strategy is not just about operations or day‑to‑day work. Strong legal foundations play a big part in supporting growth, resilience, and confident decision making. Many businesses grow and evolve faster than their original legal setup, which means the beginning of the year is a great moment to check that everything still fits.

When your legal framework matches your strategy, decisions become easier and growth becomes smoother.

Governance: Clarity at the top

Good governance is not just for large companies. Even owner‑managed businesses benefit from clear roles, responsibilities, and decision‑making processes. When everyone understands who does what, and how key decisions are made, it reduces confusion and lowers risk as the business grows or changes. Solid governance gives you a framework you can rely on, especially when the pace picks up.

Shareholder agreements: Planning for the ‘what‑ifs’

A shareholder agreement is one of the most useful tools a business can have. In plain English, it sets out how shareholders enter or exit the business, what happens if there is a dispute or a deadlock, and how changes in personal circumstances are handled. These are much easier conversations to have early, when everyone is aligned, rather than during a stressful moment. A clear agreement protects relationships and helps the business stay steady through change.

Succession planning: Thinking beyond today

Succession planning is not just about retirement. It also covers illness, unexpected exits, or opportunities that require a shift in leadership or ownership. A good plan aligns personal goals with business continuity, so the business remains viable and valuable long term. It gives certainty to your team and anyone who relies on the business.

Risk management: Protecting what you have built

As businesses grow, so do their risks. A quick review of your key contracts, supplier agreements, and customer terms can help ensure they still reflect how your business operates. It is also worth checking that your insurance and legal obligations align with your current activities. Small gaps can become big issues if left unnoticed.

If your business handles customer data, it may also be worth checking that your privacy practices and policies still meet current requirements.

People and employment settings

Your people are often your biggest asset. Making sure employment agreements, policies, and health and safety settings are up to date helps protect both your team and your business. If you are planning to grow your workforce this year, it is a good time to check that your employment foundations are fit for purpose.

Intellectual property and brand protection

If your business has developed new products, branding, or processes, it may be worth checking that your intellectual property is protected. Trade marks and other IP steps can help safeguard the value you are creating, especially if you are expanding or entering new markets.

Commercial leases and premises

If you lease your premises, reviewing your lease terms can help you plan for renewals, rent reviews, or upcoming obligations. Leases often contain time‑sensitive requirements that can affect your flexibility later.

Financing and banking arrangements

If your business has lending or banking arrangements, it can be helpful to check that your obligations still align with your current structure and plans. Growth, restructuring, or new investments can all affect what your lender expects from you.

Contract maintenance: Keeping things current

Contracts age quickly. Reviewing your key agreements to ensure they still reflect pricing, responsibilities, and service levels can prevent misunderstandings later. If your business has grown or changed, your templates may need a refresh too.

Common signs it is time for a legal review

Recent or upcoming business growth or restructuring.
New shareholders, partners, or investors.
Increased complexity, risk, or asset value.
Plans to exit, sell, or transition in the next few years.

Many local businesses in Hawke’s Bay have grown quickly over the past few years, and a quick legal check‑in can help ensure your foundations keep pace.

A simple game plan for the year ahead

A legal game plan does not need to be complicated. Often it starts with a short conversation to understand your goals and identify the areas that matter most. From there, you can prioritise what needs attention now and what can wait. Early review helps you avoid surprises, reduce risk, and move forward with confidence.

It can also help to make sure key people in your business understand any updates, so everyone is working from the same page.

Let’s set your business up well for 2026

If you want to start the year with clarity and a strong foundation, our team is here to help. You do not need to have everything figured out. A quick conversation now can make a real difference later. We’re here to help you move forward with confidence, backed by advice you can trust.

Getting your business structure right - why it matters for growth and risk

Thu, 23 Oct 2025 03:04:05 GMT

Choosing the right legal structure for your business isn’t just a box to tick, it’s a strategic decision that can shape your growth, manage your risk, and support long-term succession. Whether you're just starting out or reassessing your current setup, understanding the key differences between sole traders, partnerships, companies, and trusts can help you make informed decisions that align with your goals.

Sole Traders: simple, but limited

Operating as a sole trader is the simplest business structure. It’s easy to set up, with minimal compliance requirements, and gives the owner full control over decision-making. However, this simplicity comes with limitations. Sole traders are personally liable for all business debts and obligations, which can expose personal assets to risk. Growth can also be constrained, as the structure doesn’t easily accommodate investment or succession planning.

For small scale operations or early stage ventures, sole trading may be a practical starting point, but it’s important to reassess as the business evolves.

Partnerships: shared control, shared risk

Partnerships involve two or more people working together in business. They offer flexibility and shared responsibility and can be a good fit for professional practices or family-run enterprises. However, like sole traders, partners are personally liable for business debts, unless the partnership is structured as a limited partnership. A limited partnership is a business structure where general partners manage the business and are fully liable, while limited partners invest but have liability only up to their contribution.

Clear governance is essential. A well-drafted partnership agreement should outline roles, decision-making processes, profit sharing, dispute resolution, and exit strategies. Without this, misunderstandings can quickly escalate and impact the business.

Companies: structure for scale

A company is a separate legal entity, which means it can own assets, enter contracts, and incur liabilities independently of its shareholders. This structure offers limited liability, making it a popular choice for businesses looking to grow, attract investment, or manage risk.

Companies are subject to governance obligations under the Companies Act 1993, including maintaining accurate records, filing annual returns, and ensuring directors act in good faith and in the best interests of the company. Shareholder agreements and constitution documents play a key role in setting expectations and protecting interests.

For many businesses, incorporating as a company provides the structure and credibility needed to enable growth while also supporting succession planning through share transfers or director appointments.

Trusts: protecting assets and planning ahead

Trusts are often used to hold business assets, particularly in family-owned enterprises. A trust separates legal ownership from beneficial ownership, which can help protect assets from business risk and support long-term succession.

Trusts require careful governance. Trustees must act in accordance with the trust deed and in the best interests of beneficiaries. Regular reviews, clear documentation, and professional advice are essential to ensure the trust remains fit for purpose and compliant with legal obligations.

While not suitable for every business, trusts can be a powerful tool for asset protection, estate planning, and intergenerational succession, especially when used alongside other structures.

Structuring for success

The right structure depends on your business goals, risk profile, and future plans. It’s not just about compliance, it’s about clarity, control, and confidence. Smart structuring can:

Limit personal liability;
support investment and growth;
clarify governance and decision-making;
enable succession and continuity; and
protect assets and manage tax obligations.

At Willis Legal, we work closely with business owners to ensure their structure supports both day-to-day operations and long-term strategy. Whether you're starting fresh, expanding, or planning for the next generation, we’re here to help you get it right.

Spotlight on Emma Roberts

Sun, 19 Oct 2025 01:01:43 GMT

We’re pleased to shine a light on Emma Roberts, a Partner in our Commercial team.

Emma brings a wealth of experience in business and commercial law, with particular expertise in the sale and purchase of businesses, shareholder arrangements, commercial financing, and asset protection.

Emma has advised on a wide range of transactions, including the sale of a $34 million company and a $18 million company in the past year. She also worked closely with an iwi collective on a proposed company purchase, preparing and presenting a comprehensive legal due diligence report. Emma also advises a number of well-known local businesses on their ongoing commercial matters, providing practical, strategic advice that supports long-term growth.

Her approach is grounded in clarity and confidence. Emma believes in making informed advice and offering clients clear guidance on the best course of action, drawing on her extensive experience to ensure legal solutions are both robust and realistic. Clients value her ability to simplify complex issues and provide advice that is both practical and reassuring.

One particularly memorable transaction saw Emma finalising a large-scale deal while on holiday in Bali, after a delayed completion date meant the matter couldn’t be delegated. Despite the challenge, she ensured the transaction was completed successfully, demonstrating her commitment to client outcomes (and was grateful for Willis Legal’s investment in cloud-based technology, meaning she could work from Bali).

Emma is passionate about helping businesses set themselves up for success from the outset. She regularly advises on shareholders’ agreements, lease agreements, and other foundational documentation, areas where early attention can prevent costly complications later. Her work helps clients avoid common pitfalls and build strong legal frameworks that support future growth.

Looking ahead, Emma sees exciting developments in the commercial space, particularly with the rise of AI and the shift toward remote and digital service delivery. She encourages businesses to stay agile and embrace these changes to remain competitive.

Emma enjoys getting to know each business she works with, understanding how they operate and helping to put in place the right structures to support their goals. Her thoughtful, strategic approach makes her a trusted advisor to many.

Emma has been with Willis Legal since she moved from Auckland back to Hawke’s Bay in 2012, and has been a partner since 2020. She is an integral part of our Willis Legal team and plays a key role in supporting the success of our clients.

In Business Together?

Mon, 06 Oct 2025 03:11:02 GMT

A Shareholder Agreement Helps Everyone Stay on the Same Page

Shareholder agreements are a bit like insurance. You hope you won’t need them, but when things get tricky, you’ll be glad they’re in place.

We see many businesses, especially family-run ones, operating without a formal agreement between shareholders. Everyone trusts each other, and it feels unnecessary. But when circumstances change or disagreements arise, not having one can lead to confusion, tension, and costly fallout.

Here’s why a shareholder agreement matters, no matter who you’re in business with.

Managing disputes

Even the closest business partners won’t agree on everything. A shareholder agreement sets out how decisions are made and what happens when there’s a deadlock. Having a clear process helps resolve issues faster and with less emotion. It’s not about expecting conflict, it’s about being prepared if it happens.

Planning for change

What happens if a shareholder wants to sell, retires, or passes away? Without a plan, the business could end up with an unexpected new owner or stuck in limbo. A shareholder agreement can include rules around selling shares, succession planning, and keeping control within the intended group. It’s a way to protect the business from surprises and ensure everyone knows what to expect.

This is especially important for local businesses where ownership is often shared between family members or close friends. We’ve seen cases where a lack of planning led to unwanted third parties stepping in, causing stress and disruption that could have been avoided.

Defining roles and responsibilities

Who decides on dividends, borrowing, or hiring new staff? Without a clear agreement, it’s easy to fall into ‘but I thought you were handling that’ territory. A shareholder agreement outlines who does what, how decisions are made, and what requires majority or unanimous approval. It helps avoid misunderstandings and keeps things running smoothly.

A real-life lesson

We’ve seen firsthand how the absence of a shareholder agreement can strain relationships. In one case, a successful family business that had grown steadily over the years, ran into trouble when one sibling wanted to exit and another wanted to expand. The lack of a shareholder agreement made things difficult. The disagreement affected both the business and the family dynamic. A well-drafted agreement could have provided a roadmap and preserved both the business and the relationship.

Why it matters

Shareholder agreements don’t just protect the business. They protect the people behind it. Whether you’re in business with family, friends, or long-time colleagues, having a clear, written agreement helps everyone stay on the same page.

If you’re starting a business or already running one without a shareholder agreement, now’s the time to put one in place. At Willis Legal, we make the process straightforward and tailored to your needs. We’re here to help you protect what matters - your business, your relationships, and your future.

Contesting a will in New Zealand: understanding the process

Sun, 28 Sep 2025 21:31:00 GMT

When someone passes away, their will is meant to provide clear instructions about how their estate should be managed and distributed. For most families, it offers a sense of direction during a time of grief. But sometimes, questions arise, and a will may be contested.

Contesting a will isn’t common, but when it does happen, it can be emotionally and legally complex. At Willis Legal, we’re here to help you understand what’s involved, and to support you through the process with care, clarity, and professionalism.

Why might a will be contested?

A will can only be challenged on specific legal grounds. Examples include:

Family Protection Act claims - where close family members feel they haven’t been properly provided for in the will.
Property (Relationships) Act claims - where a surviving partner may be entitled to a share of relationship property.
Concerns about validity - for example, if the will wasn’t signed or witnessed correctly, or if the person lacked mental capacity when they made it.
Undue influence - where someone may have unfairly pressured the will-maker.

It’s important to note that not everyone can contest a will. The law limits this right to certain people, usually spouses, children, or dependents. If you’re unsure whether you’re eligible to make a claim, seeking early legal advice is key.

What does the process involve?

If someone believes they have grounds to contest a will, the process typically includes:

Obtaining a copy of the will and the assets and liabilities of the estate.
Negotiation and mediation - many disputes are resolved through negotiation or mediation, without the need for a full court hearing.
Filing a claim in court - this must be done within a set timeframe, usually within 6-12 months of probate being granted.
Court involvement - the High Court or Family Court will consider the claim and review supporting evidence, which may include medical records, witness statements, or details of family circumstances.
Court decision - if no agreement is reached, the Court will make a decision about whether the will should be changed or upheld.

Every case is different, and the Court will look closely at the individual circumstances. The law aims to balance the wishes of the person who made the will with fairness to those left behind.

Things to keep in mind

Contesting a will can be stressful, and it may affect family relationships. Timeframes are strict, and the process can be emotionally charged. It is important to seek legal advice early - not just to understand your rights and the process involved, but to help you navigate the situation with clarity and confidence.

At Willis Legal, we take a people-first approach. We understand that behind every legal issue is a family, a story, and a need for support. Whether you’re considering a claim or responding to one, we’ll walk alongside you: explaining your options, helping you weigh the risks, and working toward a resolution that respects both the law and the people involved.

How we can help

Our team has extensive experience in estate matters, including contested wills. We’ll listen carefully, explain things in plain language, and tailor our advice to your situation. We’re here to help you move forward constructively, with empathy, expertise, and a focus on what matters most.

If you have questions about a will or estate, or you’re unsure where to start, get in touch with us. We’re here to help.

The value of depth - why experience and longevity matter in law

Thu, 11 Sep 2025 10:16:13 GMT

In the fast-moving and constantly evolving legal landscape, depth of legal knowledge and long-standing experience remain cornerstones of exceptional service. At Willis Legal, we believe that longevity - both within individual careers and across the life of a firm - is not just an advantage but a profound asset that distinguishes meaningful legal practice from mere process.

With over 135 years of history, Willis Legal has grown from its roots in Napier to become a trusted legal partner across Hawke’s Bay. Founded in the late 1800s, the firm has continued to grow and evolve throughout its life, culminating in the multi-branch, modern law practice Willis Legal is today. This growth reflects not just strategic expansion, but a deep commitment to serving our community with integrity and care.

That legacy is also personal. Lawrie Willis , a longstanding partner, represents the third generation of his family to practise law at the firm. Mark Goodson , another senior (but extremely young-looking) partner, continues the legacy of his late father, a former partner, Brian. Other family ties, including Kevin Callinicos , previously a partner but now a consultant, and his daughter, Vicky and son, John (both solicitors) have helped shape the firm’s culture of continuity and trust. Over the years, Willis Legal has also produced three High Court Judges (Justice Woodhouse, Justice Gallen, and Justice Chisholm) and a District Court Judge (Judge Neal), underscoring the calibre of legal minds nurtured within our walls.

Legal knowledge gained through years of practice is more than just technical proficiency. It’s the accumulated wisdom of navigating ambiguity, resolving complex disputes, and anticipating challenges before they arise. Experienced lawyers bring insight that no textbook or single case can teach. They’ve seen the ripple effects of legislative changes, the ways precedent shifts, and how context shapes outcomes. This insight allows them to offer strategic clarity in moments when the stakes are high, and the path unclear.Whether we’re advising on property transactions, family matters, or complex commercial negotiations, we draw on long-standing knowledge to craft solutions that are practical and enduring.

Experience also builds trust. Clients often come to us in moments of vulnerability - seeking support through family breakdowns, financial uncertainty, or legal conflicts. Knowing that their lawyer has walked this path with many before them instils confidence. It reassures them that the advice they receive is grounded in more than theory; it’s been tested, refined, and proven. In a field where outcomes can profoundly affect lives, trust in your legal advisor is indispensable.

As longstanding partner Lawrence Willis puts it: “Legal knowledge is important, but it’s the experience behind it that gives it weight. Clients don’t just want answers - they want assurance that those answers come from someone who’s seen the terrain before and knows how to guide them through it.”

That ethos extends to our investment in the future. Willis Legal is proud to support young lawyers and legal executives, regularly hiring graduates and summer clerks, and fostering a culture of mentorship. Seasoned lawyers become anchors for younger colleagues, passing down knowledge that helps maintain high standards across generations. Even as we explore emerging technologies, and how we can best use them for our clients (including AI and digital tools), our core values of integrity, clarity, and client focus remain intact.

In essence, the depth of legal knowledge and long-standing experience are what turn legal representation into legal guidance. At Willis Legal, we honour this legacy - drawing on years of practice not just to resolve issues, but to educate, empower, and protect our clients with precision and heart.

Legacy in action: Lawrence Willis & Janine Blockley

Mon, 11 Aug 2025 22:06:13 GMT

At Willis Legal, longevity isn’t just measured in years - it’s felt in relationships, remembered in shared milestones, and seen in the steady rhythm of daily practice. Few reflect that spirit more than Lawrence (Lawrie) Willis and Janine Blockley , whose decades of service are woven into the fabric of the firm itself.

Lawrence Willis

Known to many as Lawrie, he is a cornerstone of the Hawke’s Bay legal community - and part of a three-generation legacy at Willis Legal. His family’s long-standing connection to the firm runs deep, reinforcing a personal commitment to its values, evolution, and enduring presence in the region.

Lawrie obtained his Bachelor of Laws from Victoria University before joining the family firm then known as Willis Toomey Robinson in 1983. Since becoming a partner in 1989, he has guided the firm through structural and strategic change (the use of personal computers, online property registration and much more), leading Willis Toomey Robinson through mergers with local Hawke’s Bay firms, including Scannell Hardy & Co, Donkin Lloyd (Napier Law), and Taradale Law, and now serving as both partner and owner at Willis Legal.

Over the years, he’s seen the pace of legal practice shift dramatically, especially in how we communicate. From fax machines to email, mobile phones, and digital platforms, each advancement has brought greater speed, and with it, greater pressure. Despite all that change, Lawrie says the highlight of his time at Willis Legal has always been the people, both the team and the clients. It’s the relationships, the shared history, and the trust built over time that continue to make the work meaningful.

“Legal knowledge gets you to the issue - but it’s experience that guides you through it. Clients want more than technical answers; they want assurance those answers come from someone who’s seen the terrain, understands its patterns, and knows how to lead with confidence and care. We learn from our experiences, good and bad and bring them to play in every decision we make.”

Lawrie’s breadth of legal knowledge from his years of practice sees him mentoring younger lawyers on how to navigate practice and the changing legal world, or offering seasoned guidance, and often a shared history, to clients.

Janine Blockley

Janine joined the firm in 1981 at just sixteen, beginning as an office junior in the accounts department - back when receipts were handwritten in carbon books and the phones lit up like a switchboard. Over the next 44 years, she held roles across departments, from search and registration to reception, and eventually settled into secretarial support.

Her story tracks not just the firm’s history - Robinson Toomey & Partners > Willis Toomey Robinson > Willis Legal - but the pace of legal practice itself: from mini cassette tapes to modern cloud-based systems. Through it all, Janine remained constant, supporting teams, remembering clients and family histories, and quietly keeping the engine of the firm humming.

“The thing that keeps me here is the staff - they’ve always felt like family. I’m now the longest-standing member and going for the record… if AI doesn’t take my job first!”

Together, Lawrie and Janine represent two facets of enduring excellence: one leads with legal depth and strategic foresight, the other sustains culture, continuity, and client connection. In an industry where change is constant, they prove that relevance doesn’t just come from reinvention - it grows from reliability, care, and long-held trust.

At Willis Legal, we’re proud to honour their legacy - and the values it continues to inspire.

Understanding Legal Aid: how it works and who it helps

Wed, 30 Jul 2025 09:37:56 GMT

Legal issues can be overwhelming - especially when you’re unsure how to afford the help you need. That’s where Legal Aid comes in. It’s a government-funded programme that helps people access legal advice and representation when they can’t afford it on their own. At its heart, Legal Aid is about fairness: ensuring that everyone has the opportunity to be heard and supported, no matter their financial circumstances.

What is Legal Aid?

Legal Aid is a grant from the government to assist people who would not otherwise be able to afford legal services pay for a lawyer. Legal Aid is not available for every legal issue - for example, it generally doesn’t cover wills, conveyancing, or commercial disputes - but it can be a vital support for those dealing with serious or stressful situations.

At Willis Legal we provide Legal Aid for certain family and civil matters.

Who can get Legal Aid?

Legal Aid is means-tested, which means your income and assets will be assessed to determine whether you qualify. The thresholds vary depending on your circumstances - for example, whether you have dependents or a partner. Even if you earn above the threshold, you may still be eligible for partial Legal Aid, or be asked to repay some of the costs over time, depending on your situation.

As of July 2025, a single person with no dependents may qualify if they earn under $28,984 per year, while someone with a partner and two children may qualify if their household income is under $73,608.

How do you apply?

For family matters, we can help you complete the application. You’ll need to provide:

proof of income (eg payslips or benefit statements);
details of your assets (eg savings, property, vehicles); and
information about your living situation and dependents.

Common misconceptions

There are a few misunderstandings about Legal Aid that are worth clearing up:

It’s not just for criminal cases. Many people don’t realise Legal Aid is available for a wide range of family and civil law matters.
It doesn’t mean “free lawyer” in every case. Depending on your financial situation, you may need to repay some or all of your Legal Aid over time. Legal debt may be secured against any property, taken from any proceeds of your case, or you may be required to make weekly repayments, depending on your situation.
You can choose your lawyer. If a lawyer is approved to take on Legal Aid work, and agrees to act for you, you can ask for them specifically.
You must update your details. If your income or assets change, you need to let Legal Aid Services know - otherwise, your eligibility could be affected.

For more information about how Legal Aid works, visit the Ministry of Justice website .

Navigating relationship property: why experience matters

Wed, 23 Jul 2025 22:47:51 GMT

When a relationship ends or circumstances change, untangling shared property can quickly become complex, emotionally, legally, and financially . R elationship property law provides a framework for dividing assets between partners. Whilst it is a legal process, it is also deeply personal. That’s why having an experienced and trusted advisor is essential.

What is relationship property?

The Property (Relationships) Act 1976 (the Act) governs how property is divided when a marriage, civil union, or de facto relationship ends, including when a partner passes away. In most cases, there is a presumption of a 50/50 split of shared property, but exactly what counts as “shared” can be more involved than people realise.

Relationship property can include:

the family home;
vehicles and household contents;
KiwiSaver and superannuation;
income earned during the relationship;
any assets acquired together; and
any relationship debts.

There are also important exceptions and nuances, especially if one partner has brought significant assets into the relationship, or if there are children involved.

When the 50/50 rule doesn’t apply

While equal sharing is the default, there are several situations where the law may allow for a different outcome:

relationships of short duration (less than 3 years);
significant economic disparity between partners;
separate property, such as inheritance or pre-relationship assets (not intermingled); and
contracting out agreements (previously known as prenups).

Couples can choose to “contract out” of the default rules by signing a formal agreement. However, this must meet strict legal requirements in order to be valid and enforceable. One of these requirements is that both parties must have independent legal advice.

When children are involved

Children can significantly impact the division of relationship property. The law acknowledges the necessity of protecting a child’s wellbeing, particularly during family transitions.

In these situations, the court may:

postpone the sale of the family home if it would disrupt a child’s living situation;
prioritise stability by ensuring that the primary caregiver can continue to provide a secure environment;
acknowledge unpaid contributions, such as caregiving, as equal in value to financial contributions; and
apply the Act to relationships of short duration if there’s a child of the relationship.

Every family is different and when children are involved, the stakes are higher. That’s why it’s crucial to seek advice that combines legal clarity with compassion and care.

Every situation is different

While the law provides a general framework, no two families or relationships are exactly alike. That’s why having thoughtful and experienced legal support makes all the difference. Whether you're entering into a new relationship, separating, or simply planning for the future, clear advice from someone who understands the legal landscape and your personal one is essential.

Why legacy matters

Willis Legal has been advising Hawke’s Bay families for generations. That long history means we don’t just know the law, but also the community. We approach every situation with perspective, stability, and a practical mindset. Our clients trust us not only to get the paperwork right, but also to help them move forward with clarity and confidence.

If you’re facing a separation, starting a new relationship, or looking to secure your future our team is here to help you understand your options in a way that works for you. Book a confidential consultation with us today and take the first step toward peace of mind.

Behind the professional: understanding the path to becoming a legal professional in New Zealand

Wed, 09 Jul 2025 22:33:00 GMT

When you’re facing a legal issue, it’s natural to feel unsure about where to start. Legal processes can be complex, and it helps to know that you have trained professionals on your side who understand how to navigate them properly. Whether it’s buying a home, handling a dispute, or managing a family matter, working with qualified legal experts means your matter is being handled with care, skill, and integrity.

At Willis Legal, we understand those concerns - and we also believe that transparency and education are the best ways to build trust. So, let’s take a closer look at what it actually takes to become a lawyer or legal executive in New Zealand, and the high professional standards all legal professionals are held to - year after year.

What’s the difference between a barrister, solicitor, and legal executive?

Solicitor

Solicitors are usually your first point of contact for legal advice. They handle a wide range of matters like property and business transactions, family law, wills, enduring powers of attorney and business issues. Our Family Team and Dispute Resolution Team lawyers appear in court (both the Family Court and High Court) regularly, and when required, the District Court, Environment Court, Employment Relations Authority, Court of Appeal, and the Supreme Court (less often). Sometimes solicitors “brief” (engage or instruct) barristers to appear in court for more complex civil litigation, like a Supreme Court appeal hearing. All Willis Legal lawyers are “barristers and solicitors”.

Barrister

A barrister is a lawyer who usually specialises in courtroom advocacy and does not operate a trust account. While barristers are common in criminal law and family law, for civil matters, they’re usually engaged by solicitors to represent clients in higher courts or in complex legal matters. Willis Legal works with a number of barristers across New Zealand in relation to different legal matters when required.

Legal Executive

Legal executives are qualified legal professionals who work closely with solicitors, often in areas like conveyancing (buying and selling of property), wills, enduring powers of attorney, probate, and estate administration. They are trained and can be accredited through Legal Executives New Zealand ( LENZ ). Legal executives accredited through LENZ are called “Registered Legal Executives”. Legal executives play a crucial role in the delivery of legal services, particularly in property and documentation-heavy areas, like estates. Once they have over eight years' experience as a Registered Legal Executive, they can become a “Fellow” of LENZ.

Becoming a legal professional: the path and the commitment

Becoming a lawyer or legal executive in New Zealand isn’t just about getting a qualification and a job title. It’s about upholding trust, ethics, and accountability.

To become a lawyer (barrister or solicitor), you must:

complete a Bachelor of Laws (LL.B) from a recognised university;
complete the Professional Legal Studies Course (also known as “profs”);
be admitted to the bar by the High Court of New Zealand; and
apply for and hold a current Practising Certificate as a barrister and solicitor (administered by the New Zealand Law Society), which must be renewed annually.

Every year, lawyers must declare their fitness to practice, by answering a number of questions, including:

all fundamental obligations as laid out in section 4 of the Lawyers and Conveyancers Act 2006, including adhering to the rules of conduct and client care for lawyers ( Lawyers and Conveyancers Act 2006 (Lawyers: Conduct and Client Care) Rules 2008);
uphold the rule of law and protect the interests of their clients;
declaring any criminal convictions, financial issues such as bankruptcy or tax defaults, any complaints or disciplinary actions, or any mental or physical health condition which might affect their ability to practise law; and
proof that they have completed the required amount of Continuing Professional Development.

This process is designed to protect clients and maintain the public’s confidence in the profession.

What this means for you

When you work with a legal professional - whether a solicitor, barrister, or legal executive - you’re working with someone who has gone through rigorous training and is held to strict professional standards.

We know that legal outcomes can sometimes be frustrating, especially when the law doesn’t deliver the result you were hoping for. But rest assured: our team is committed to acting in your best interests, upholding the law, and delivering the best service we can within the framework of the legal system.

If you ever have a question about your legal process, we’re here to talk you through it.

Willis Legal

Professional. Principled. On your side.

Healthy Homes law change: what every tenant & landlord needs to know

Wed, 25 Jun 2025 04:52:52 GMT

New Zealand’s Healthy Homes standards have been rolling out since 1 July 2019 , culminating in a final compliance deadline of 1 July 2025 for all private residential rentals. These standards cover essential areas like heating, insulation, ventilation, moisture, drainage, and draught stopping, ensuring homes are safe, warm, and healthy.

Key compliance time frames

Tenancies that began or were renewed between 1 July 2021 – 27 August 2022 :
Must meet standards within 90 days of tenancy start or renewal.
Tenancies that began or were renewed between 28 August 2022 – 2 March 2025 :
Now have up to 120 days to comply — extended due to legislative updates .
Tenancies started on or after 3 March 2025 :
Must comply with the 1 July 2025 deadline.
All existing periodic tenancies , regardless of start date:
Are also required to meet standards by 1 July 2025

New compliance statements are mandatory

From 1 December 2020, it's illegal to ignore the requirement for a signed compliance statement in new or renewed tenancy agreements. This must detail the property’s current level of compliance. Failing to include this in the tenancy agreement can attract penalties of up to $500 per tenancy.

Penalties & tenant rights

Landlords who do not comply risk:

Fines up to $7,200 per breach under the Residential Tenancies Act.
Tenants can issue a 14-day notice to remedy issues. If ignored, they may apply to the Tenancy Tribunal.
We see that high volumes of disputes are emerging, especially in student accommodation.

Why does this matter?

For tenants : You're entitled to a rental that’s warm and dry from 1 July 2025 onward — and you’ve got legal mechanisms to enforce this.
For landlords : Compliance isn’t optional — it’s law. Even a single standards omission can result in Tribunal orders, rent rebates, and reputational damage.

What you should do now

Landlords :

Book a Healthy Homes Assessment to identify what’s needed. A Healthy Homes Assessment is a property check carried out by a qualified assessor to see whether your rental meets New Zealand’s legal standards for heating, insulation, ventilation, and more. Assessments aren’t mandatory, but they’re a smart way to avoid guesswork and ensure you’re on track. Providers vary by region and service, so it’s worth doing a bit of research to find one that suits your needs.
Ensure all relevant tenancy agreements include the compliance statement , and maintain evidence (eg invoices, inspection certificates).
Plan and complete works before 1 July 2025 , the final deadline.

Tenants :

Review your tenancy agreement or ask for the compliance statement if you haven’t seen it.
If your property doesn’t meet the standards, talk to your landlord. If unresolved within 14 days, consider a formal notice to remedy and prepare to go to the Tenancy Tribunal.

While many landlords may have allowed compliance to drift, the law is clear: from 1 July 2025 , all rental properties must meet Healthy Homes standards , without exceptions.

By getting informed and proactive now, everyone — landlords, tenants, property managers — can avoid penalties, legal disputes, and, most importantly, poor living conditions.

Commercial lease expiry coming up?

Sat, 31 May 2025 00:53:39 GMT

Know Your Rights and Obligations at Renewal Time

If your commercial lease is approaching its expiry date, now is the time to get clear on your rights, obligations, and options. Whether you’re a landlord or a tenant, understanding the renewal process is key to protecting your business interests and avoiding unexpected issues.

What Happens When a Commercial Lease Expires?

Most commercial leases include a right of renewal, giving the tenant the option to continue the lease for a further term. However, this right is not automatic—it must be properly exercised within the timeframes set out in the lease, often 3 to 6 months before expiry.

Failure to renew the lease means that the current term of the lease ends. When the lease ends, most leases provide for month-to-month tenancy to continue. This means that the tenant or the landlord could end the tenancy by giving twenty working days’ notice, leaving the tenant without premises or the landlord needing to find a new tenant at short notice.

Things to Consider at Renewal:

Exercise of Renewal Rights
Tenants must provide written notice of their intention to renew within the required notice period. Landlords should confirm whether this has been done correctly and on time.
Market Rent Reviews
Most commercial leases provide for a market rent review at the start of a renewed term. This can lead to negotiation—and sometimes dispute—around current market rates. It’s often worth obtaining independent valuation advice.
Condition of the Premises
At the point of renewal, landlords may check that the tenant has complied with their obligations under the lease and maintained the premises. It is wise to review the lease and be aware of each party's maintenance and make good obligations.
Compliance with Lease Terms
Landlords generally cannot refuse to renew a lease provided the tenant has complied with their obligations under the lease. However, landlords may have grounds to object if, for example, rent has not been paid on time, or the premises have not been properly maintained.

Plan Ahead to Avoid Surprises

The lead-up to lease expiry is the perfect time to reassess whether the existing terms still suit your commercial needs. Whether it's negotiating more favourable conditions, securing stability for the future, or ensuring compliance with legal obligations, early legal advice can make a significant difference.

Talk to us if your commercial lease is due to expire in the next 6–12 months. We can help you navigate the renewal process and ensure your interests are protected.

Electronic signature use

Wed, 07 May 2025 00:39:34 GMT

Electronic signatures have made signing documents easier, faster, and more efficient. They replace the need for pen-and-paper signatures and allow people to complete transactions digitally. Since the Contract and Commercial Law Act 2017 came into effect on 1 September 2017, electronic signatures have become widely used for legal documents and transactions.

What Are Electronic Signatures?

An electronic signature is any digital way of signing a document. This could be typing your name, clicking “I agree,” or using special software to create a secure digital signature. Electronic signatures are recognised as legal and binding as long as they meet three key requirements:

They clearly show the person intended to sign the document;
They are reliable and appropriate for the document's purpose: and
Both parties agree to use electronic signatures.

Using Electronic Signatures in Property Transactions

Electronic signatures are increasingly being used in property transactions. Lawyers and conveyancers use them to complete important steps like signing sale and purchase agreements or submitting documents to register the transfer of property titles.

In October 2024, the Authority and Identity Requirements for E-dealing Guidelines 2024 were updated, allowing Authority and Instruction (A&I) forms to be more readily signed and witnessed electronically. Electronic signatures on A&I forms must meet strict reliability standards under the Contract and Commercial Law Act 2017. This includes ensuring the signature is linked to the signer, under their sole control, and that any alterations to the signature or document are detectable. Practitioners must also retain digital signing logs as evidence for compliance.

Benefits of Electronic Signatures

Fast and Convenient : You can sign documents anytime, anywhere - no need for printing or mailing papers.
Cost-Effective : They save time and money by reducing the need for physical paperwork.
Secure : Advanced software ensures the signatures cannot be easily altered or faked.
Environmentally Friendly : They reduce the use of paper, making them a more sustainable option.

Challenges and Considerations

While electronic signatures are very useful, there are some things to think about:

Trust and Reliability : It's important that the signature method is secure and reliable, especially for high-value transactions.
Technology Needs : Both parties need access to the right tools to sign electronically.
Exclusions : Some documents, like wills and powers of attorney, cannot be signed electronically under New Zealand law. It is also strongly recommended that separation and relationship property agreements be signed in person unless there are exceptional circumstances.

Separation Agreements and Contracting Out Agreements

The Property (Relationships) Act 1976 requires that signatures be witnessed by a lawyer in order to be valid. To date, the law has not been tested as to whether this requires the signature to be witnessed in person. Given the importance of these agreements, specific clauses are put in these agreements if people are wanting to sign electronically. Certain procedures are also followed in the signing process. Electronic signing of these agreements is normally only done if it is not practicable for someone to attend in person.

Making the Most of Electronic Signatures

To use electronic signatures effectively:

Choose reliable software or platforms that comply with the Authority and Identity Requirements for E-Dealing Standard 2024.
Make sure all parties agree to use them beforehand.
Verify the identity of signers when needed, especially for important documents.
Retain evidence, such as digital signing logs, to meet legal obligations.

Electronic signatures are a legal and practical way to sign documents. They are particularly helpful for property transactions and have made processes smoother for everyone involved. With the clear guidance provided in the Authority and Identity Requirements for E-Dealing Guidelines 2024, electronic signatures are now even more accessible and secure for legal professionals. By understanding their benefits and being aware of their limitations, businesses and individuals can confidently use electronic signatures in their day-to-day dealings.

Please contact us if you need to know more about electronic signatures – we’re always here to help!

Estate administration

Wed, 23 Apr 2025 00:34:18 GMT

Your FAQs About Probate, Executors, and the Process answered.

When someone close to you passes away, dealing with their estate can be daunting - especially during an emotional time. Whether you're named as an executor in a will or are simply trying to understand what comes next, this guide outlines the key steps and answers common questions about estate administration in New Zealand.

1. What is estate administration?

Estate administration is the process of managing and distributing a person’s assets after they die. It involves:

Gathering and protecting the deceased’s assets
Paying any debts or taxes
Distributing the remaining funds/assets to the beneficiaries

This process can be straightforward or complex, depending on the size of the estate, the type of assets, and whether a valid will exists.

2. What is Probate?

Probate is a legal document that is sought from the High Court who confirm that a will is valid and gives the executor the authority to deal with the estate and access bank accounts, transfer property, and distribute the estate as per the will.

If there is no will , an application for Letters of Administration on Intestacy is made, and an administrator is appointed (usually a close family member).

3. What are the main steps in administering an estate?

Here’s a general overview of the process:

Locate the will (if one exists).
Apply for Probate or Letters of Administration on Intestacy through the High Court.
Identify and value all assets (e.g., property, bank accounts, shares, KiwiSaver).
Pay debts and any taxes (including income tax and potentially estate or gift duty).
Distribute the remaining assets to the beneficiaries. Keep clear records and provide an account of the administration if required.

4. What does an executor do?

An executor is responsible for ensuring the terms of the will are carried out. Their legal duties include:

Acting in good faith and in the best interests of the estate
Protecting the estate’s assets
Ensuring debts and taxes are paid
Distributing the estate as outlined in the will
Keeping beneficiaries informed

Executors can be held personally liable if they make serious mistakes. So, if you have been appointed an executor, it is prudent to seek legal guidance as you carry out your role.

5. Does every estate need to go through Probate in New Zealand?

No - not all estates require Probate. It may not be necessary if:

The estate is small (some banks allow access to funds under a certain threshold without Probate)
All assets were jointly owned with a spouse or another party
Certain assets (like life insurance) have named beneficiaries

However, Probate is usually required when the estate includes property, real estate, or significant financial assets.

6. What if there’s no will?

If a person dies without a will, they are said to have died ‘ intestate’ . A close relative (usually a spouse, partner, or adult child) must apply to the High Court for Letters of Administration on Intestacy .

The estate is then distributed according to the Administration Act 1969 , which outlines a specific order of entitlement. This may not reflect what the deceased would have wanted, so it’s always a good idea to have a will in place.

7. How long does the process take?

Administering an estate can take anywhere from 6 to 12 months , depending on:

Whether Probate is needed
The complexity of the assets
Whether there are disputes among beneficiaries

Delays can also arise if the will is contested or if there are issues with asset valuations or tax returns.

8. Can I get help with the process?

Absolutely. While some executors manage estates on their own, many choose to work with a legal adviser - especially when:

The estate is complex
There's no will
There are overseas assets or beneficiaries
Beneficiaries are disputing the will

A lawyer can help you apply for probate or Letters of Administration on Intestacy, manage the distribution of assets, and ensure your legal responsibilities are met.

Need Assistance?

We understand that estate administration can feel overwhelming - particularly during a time of grief. If you’ve been appointed an executor or are unsure about your responsibilities, we’re here to help.

Contact us for practical, compassionate legal advice tailored to your situation. Whether you need help applying for probate, interpreting a will, or managing the full administration process, we can assist.

Protecting Vulnerable Beneficiaries with Trusts

Sun, 13 Apr 2025 23:12:54 GMT

Trusts are a powerful tool for safeguarding the financial well-being of your vulnerable family members. Whether you have loved ones with disabilities, those in need of long-term care, or other special circumstances, establishing a trust can provide the necessary protection and support. Here's how trusts can help protect your vulnerable beneficiaries:

What Is a Trust?

A Trust is a legal entity where one party, known as the trustee, holds and manages assets on behalf of another party, known as the beneficiary. Trusts can be individually tailored to meet specific needs and provide a range of benefits for your vulnerable family members.

Types of Trusts for Vulnerable Beneficiaries

There are several types of trusts designed to protect vulnerable beneficiaries, including:

Special Needs Trusts: These trusts are specifically created to benefit individuals with disabilities without affecting their eligibility for government benefits such as New Zealand Superannuation and the Disability Allowance. Special needs trusts ensure that the beneficiary's financial needs are met without jeopardising their access to essential services and support.
Discretionary Trusts: In a discretionary trust, the trustee has the authority to decide how and when to distribute trust assets to the beneficiary. This type of trust is particularly useful for beneficiaries who may not be able to manage their own finances due to age, illness, or other factors. The trustee can make decisions based on the beneficiary's needs and circumstances.
Protective Trusts: Protective trusts are designed to shield assets from creditors or potential legal claims. These trusts can be particularly beneficial for beneficiaries who may be at risk of financial exploitation or who have a history of financial mismanagement.

Benefits of Trusts for Vulnerable Beneficiaries

Establishing a trust for a vulnerable beneficiary offers several advantages:

Financial security: Trusts provide a structured way to manage and distribute assets, ensuring that the beneficiary's financial needs are met over the long term.
Access to Government benefits: Special needs trusts, in particular, allow beneficiaries to receive financial support without affecting their eligibility for government benefits. This ensures that they have access to essential services and support.
Protection from exploitation: Trusts can protect vulnerable beneficiaries from financial exploitation by placing assets under the control of a trusted trustee. This reduces the risk of beneficiaries being taken advantage of or mismanaging their finances.
Customised support: Trusts can be tailored to meet the specific needs and circumstances of the beneficiary. This allows for a personalised approach to asset management and distribution.

Considerations for setting up a Trust

When establishing a trust for a vulnerable beneficiary, it's important to consider the following:

Choosing the right Trustee(s): The trustee plays a crucial role in managing the trust and making decisions on behalf of the beneficiary. It is important to choose someone who is trustworthy, knowledgeable, and capable of handling the responsibilities.

Drafting the Trust Deed: The Trust Deed should clearly outline the terms and conditions of the trust, including the extent of the Trustee's powers and responsibilities, the beneficiary's rights, and the distribution of assets. Working with a legal professional can ensure that the document is properly drafted and legally sound.

Regular Reviews: Trusts should be reviewed regularly to ensure that they continue to meet the beneficiary's needs and comply with any changes in laws or regulations. This helps to ensure that the trust remains effective and relevant over time.

Trusts are a valuable tool for protecting your vulnerable beneficiaries and ensuring their financial well-being. By providing a structured and secure way to manage and distribute assets, trusts offer peace of mind for both beneficiaries and their families. It is important to speak with a trusted legal professional to ensure that a Trust is the most effective vehicle for protection (ie compared to Enduring Powers of Attorney or other legal arrangements).

If you have a vulnerable family member in need of financial protection, consider establishing a trust to safeguard their future. Contact us today to discuss how we can help you set up a trust that meets your family's unique needs.

Winding Up or Amending a Trust: What You Should Consider

Sun, 13 Apr 2025 23:07:05 GMT

Trusts are a valuable tool in estate planning, asset protection, and financial management. However, circumstances may change, and you might need to amend or wind up a trust. Before taking any action, it's important to understand the considerations and implications involved.

Understanding the Winding Up of a Trust: Winding up a trust means ending it entirely, nullifying its existence, and distributing the assets to the beneficiaries of the trust. Here's what you should know:

Type of Trust: The ability to wind up a trust depends on the powers provided within its Trust Deed. Generally, revocable trusts can be changed or wound up by the Settlor (or other party nominated in the trust deed) at any time, as long as they are mentally competent. Fixed trusts (or irrevocable trusts) cannot be easily wound up or amended without the consent of the beneficiaries and sometimes a court order.
Reasons for winding up: Common reasons for winding up a trust include changes in personal circumstances, such as marriage, divorce, or significant financial changes. If the trust no longer serves its intended purpose, winding it up may also be necessary.
Process: Winding up a trust typically involves drafting a formal revocation deed, which must be signed and notarised (this means a Notary Public, a type of lawyer, needs to sign). It is advisable to consult with a legal professional to ensure it is appropriate to wind up the trust and that all legal requirements are met.

Considerations for Amending a Trust

Amending a trust means making changes to the terms or provisions of a trust without completely winding the trust up. Here are some key considerations:

Identify the changes: Before amending a trust, clearly identify the specific changes you want to make. This could include altering beneficiaries, changing trustees, or modifying distribution terms.
Consultation with Trustees: Communicate with the trustees about the proposed amendments. Trustees play a crucial role in managing the trust and must be informed about any significant changes. Trustees must reach a unanimous decision together, before the Trust can be amended.
Legal compliance: Ensure that the amendments comply with all relevant legislation and the terms and powers outlined in the original Trust Deed. Consulting with a legal professional is highly recommended to avoid any undesired legal consequences.
Formal documentation: Like winding up a trust, amending a trust requires formal documentation. A Trust Amendment Deed must be drafted, signed, and notarised. In some cases, multiple amendments may be consolidated into a single restatement of the trust.

Potential Implications

Both winding up and amending a trust come with potential implications that need careful consideration:

Tax consequences: Changes to a trust can have tax implications, particularly for fixed trusts. It is essential to consult with a tax advisor to understand the potential impact on your tax situation.
Legal challenges: Improperly executed amendments or revocations can lead to legal challenges from beneficiaries or other interested parties. Ensuring that all legal requirements are met and that the changes are clearly documented can help mitigate these risks.
Asset protection: Amending or winding up a trust may impact the level of asset protection the trust provides. For example, winding up a trust could expose assets to creditors or legal claims. Consider the implications for your overall asset protection strategy before making any changes.

Winding up or amending a trust is a significant decision that requires careful consideration and professional guidance. Understanding the type of trust, the reasons for change, and the potential implications is essential. Consulting with legal and tax professionals can help ensure that the process is carried out smoothly and that your trust continues to serve its intended purpose effectively.

If you are considering winding up or amending a trust, take a thoughtful and informed approach. By doing so, you can ensure that your trust continues to provide the desired benefits and aligns with your current circumstances and goals.

We have the expertise to guide you through this process. Contact us today to discuss your options and ensure your trust is serving your best interests.

The Benefits and Challenges of Trusts

Sun, 13 Apr 2025 22:58:04 GMT

How an Independent Professional Trustee Could be of Assistance

Trusts have long been a popular tool for managing and protecting assets. They offer various benefits, especially for those who own their own business or want to ensure their assets are protected. However, there are also some drawbacks to consider. Here, we'll explore both the benefits and the cons of setting up a trust, helping you decide if it's the right option for you.

Benefits of Trusts

Asset protection: Trusts are particularly beneficial for business owners, as they protect personal assets from business risks and creditors. By placing assets in a trust, you can shield them from being drawn down to pay personal debts or from relationship property claims. This ensures that your personal wealth remains secure, even if your business faces financial challenges.
Tax efficiency: Depending on your situation, trusts can offer tax efficiencies. However, it's essential to speak with an accountant to understand how a trust can impact your tax obligations. A well-structured trust can help minimise tax liabilities and maximise the benefits for your beneficiaries.
Estate planning: Trusts play a crucial role in estate planning. They ensure that your assets are distributed according to your wishes after your passing. However, it's essential to consider if other instruments like wills, enduring powers of attorney (EPOAs), or specific ownership structures might be better suited for your needs.
Serving certain family dynamics: Trusts can be tailored to serve specific family dynamics, ensuring that assets are retained for family members who may need them the most. This includes providing for those with disabilities, rest home care, or hospital care. A trust can help ensure that your loved ones are cared for, even if you are no longer around.

Cons of Trusts

Loss of control of assets: When you set up a trust, the assets are no longer considered your personal assets. They belong to the trust, and the trustees have decision-making control over them. This means you need consensus decision-making from all trustees, and the assets are governed according to the powers outlined in the trust deed.
Ongoing administration and costs: Trusts require ongoing administration, including maintaining records, fulfilling disclosure obligations, filing tax returns, and complying with legal requirements. This can be time-consuming and costly, which might be a downside unless there is a good reason for having a trust.
Tax implications: While trusts can offer tax efficiencies, they also come with tax implications. It's essential to understand these implications and seek professional advice to ensure compliance with tax laws and regulations.
Legal challenges: If a trust is not administered properly, it can face legal challenges. This can result in disputes among beneficiaries or questions about the validity of the trust. Proper administration and adherence to legal obligations are crucial to avoid such issues.

Independent Professional Trustees

Appointing an independent professional trustee such as accountants or lawyers (including one of Willis Legal’s Trustee Companies) for your Trust can offer several desirable benefits.

Such benefits include:

Transparency and Independence: Appointing an independent trustee can ensure that the trust’s assets are managed, and decisions affecting assets are made, in a totally independent manner. This gives the Trust integrity and can provide beneficiaries with peace of mind. This can be particularly important when family or business dynamics are complex or strained. Independent trustees can also help to avoid or negate any perception of a ‘sham trust’.
Stability over time: Private trustees might lose their ability, willingness or capacity to act as trustee over the life of the Trust. However, professional trustee companies provide longevity, consistency and stability. The costs of retiring trustees unable or unwilling to act and appointing new trustees can be reduced, particularly over time.
Knowledge and expertise: Professional trustees hold the up-to-date and best practice information on New Zealand Trust legislation. This knowledge and expertise encourages strong compliance with the Trusts Act 2019 as well as proper administration and record-keeping. The knowledge and advice gained from having a professional trustee included can assist other trustees with decision-making regarding the trust’s assets and administration.

Overall considerations

When deciding whether to create a new trust, it's essential to have a specific and good reason. One of the benefits listed above should outweigh the cons. It's also crucial to speak with a lawyer to assess if a trust is the right vehicle to achieve your objectives and tailor it to your individual circumstances. For example, transferring assets into a trust could potentially affect your eligibility for residential care subsidies. Therefore, professional advice is vital before making any decisions in relation to trusts.

We encourage settlors (creating a new Trust) or continuing trustees who are appointing any new Trustees, to consider whether an independent professional trustee might be beneficial. As outlined above, there can be significant advantages to having an independent professional trustee included.

Willis Legal provides its own independent professional trustee service, ask about it today.

If you believe that creating a Trust might be of benefit to you, your family or business and/or if you are interested in including an independent professional trustee – please do not hesitate to contact one of our friendly staff and we would be happy to discuss this with you in further detail.

A Guide to Navigating Debt Recovery

Tue, 25 Feb 2025 22:18:39 GMT

Managing debt recovery can be a challenging task, but understanding the process can help you take control and ensure the successful collection of unpaid debts. This guide provides essential information on how to effectively manage and recover debts from clients or businesses.

Understanding Debt Recovery

Debt recovery is the process of collecting unpaid debts from individuals or businesses. It involves various steps, from initial communication with the debtor to legal action if necessary. The aim is to tackle debts as soon as possible before they become unmanageable for both your business and the debtor.

Steps to Take for Debt Recovery

Assess Your Debt Situation: Begin by assessing your outstanding debts. Make a list of all the debts owed to your business, including the amount owed, the debtor, and the due dates. This will give you a clear picture of your receivables and help you prioritise which debts to address first.
Communicate with Debtors: Open communication with your debtors is crucial. Contact them to discuss the outstanding debt and explore possible solutions. Early intervention is usually preferable to prevent problem debts from escalating to a level that impacts your business.
Create a Recovery Plan: Develop a realistic debt recovery plan based on your business goals and financial situation. Prioritise high-value debts and allocate resources to recover these debts first. Stick to your plan and follow up consistently to ensure timely recovery.
Seek Professional Advice: If you're struggling to recover debts, consider seeking professional advice. Debt recovery agencies and legal professionals can provide valuable guidance and help you create a tailored debt recovery plan. They can also negotiate with debtors on your behalf.
Explore Legal Options: Legal action can help recover the owed amount, but it's important to seek legal advice before proceeding to minimise the chances of spending time and money pursuing unrecoverable debts.

Debt recovery can be tough, but with the right steps, you can take control of your receivables. Assess your debt situation, communicate with debtors, create a recovery plan, and seek professional advice if needed.

For more information, you can also check out the Government's debt management website: https://debtmanagement.treasury.govt.nz/

Charities and the Law: Are you up to date with the 2024 Changes

Mon, 10 Feb 2025 23:27:45 GMT

Charities play a crucial role in making a positive impact in our communities, and the laws that govern them shape how effectively they can operate. If you are involved with a charity, it's important to stay informed about recent changes in the law. The ‘rulebook’ has been updated.

The Charities Act 2005 (the Act) is the primary legislation that regulates how charities function in New Zealand. To maintain charitable status, officers of a charity must ensure compliance with the Act not only at the time of registration but continuously, including adhering to any changes in the law.

The Act has been amended by the Charities Amendment Act 2023, which came into force in July last year, with further changes which took effect in July 2024. Here are some key updates:

Expanded definition of officer

Officers of a charity are responsible for ensuring the charity's purpose is fulfilled and its obligations are met. The definition of who qualifies as an officer has been broadened to include:

Anyone (including a corporate body) in a position within the charity who can significantly influence major decisions.
This applies regardless of the type of entity (e.g., trust, company, society) and the individual's title. The focus is on their influence, not their title.
Officers now include trustees, members of the governing body, and roles like CEO, CFO, and general manager if they have substantial influence.
Additional disqualification criteria now include convictions related to financing terrorism.
The minimum age for officers has been lowered to 16, provided at least one officer is 18 or older.

Governance review requirement

Charities must now review their governance procedures at least every three years. This review should assess whether the deed, constitution, or rules are fit for purpose, help achieve the charity's goals, and comply with the Act. Key questions to consider include:

Is the charitable purpose clear and still relevant?
Are the current activities aligned with the purpose?
Do the rules need updating to meet changing needs?
Are conflicts of interest being managed appropriately?

The review process is self-driven and can vary for each charity, but it must be documented.

Consequences of serious wrongdoing

Previously, serious wrongdoing by a charity or its officers led to deregistration. Now, the Charities Registration Board can disqualify the relevant officer without deregistering the charity. The definition of serious wrongdoing has been narrowed to include only offences punishable by imprisonment for two years or more, but still covers unlawful or corrupt use of funds and grossly negligent actions.

Reporting and accounting standards

Reporting requirements have been streamlined for very small charities, while larger charities face more rigorous obligations. All charities must file an annual return with Charities Services, including financial statements prepared according to generally accepted accounting practice. The External Reporting Board (XRB) sets these standards.

Tier 4 charities (annual expenses under $140,000) can use cash-based accounting.
Tier 3 charities (annual expenses between $140,000 and $2,000,000) use accrual-based accounting.
Larger charities (expenses over $2 million) continue to follow existing standards.

Changes effective from 5 July 2024

Further amendments came into effect on 5 July 2024, which aimed to streamline the appeals process, making it more accessible and less costly for charities to challenge decisions by the Charities Registration Board:

Charities can appeal to the Taxation Review Authority before the High Court and can self-represent to save on legal costs.
The scope of appealable decisions will expand to include significant decisions by Charities Services.
The timeframe for lodging an appeal will extend to two months.
Representatives of a charity can appear in person to speak to the Board on appeals.

Staying informed about these changes is essential for ensuring your charity remains compliant and continues to make a positive impact in the community. If you have any questions or need assistance, consider seeking professional advice to navigate these updates effectively.

Why Keeping Your Documents Up-to-Date Matters

Mon, 10 Feb 2025 23:22:42 GMT

As we plan for the next 12 months, it's a good time to remember the importance of keeping your family documents up to date. In today's busy world, it's easy to forget this task, but having accurate and current records is really important for your family's security and peace of mind. Here are some key reasons to regularly review and update your family documents:

Keeping your family documents up to date ensures legal protection. Important documents like wills, powers of attorney, and healthcare directives need to reflect your current wishes and circumstances. An outdated will might not account for new family members or changes in your financial situation, potentially leading to disputes and legal complications.
Accurate and current financial documents are essential for managing your family's assets and liabilities. This includes updating beneficiary designations on insurance policies, retirement accounts, and investment portfolios. Keeping these documents up-to-date ensures that your assets are distributed according to your wishes and helps avoid unnecessary taxes and legal fees.
In an emergency, having up-to-date documents can make a significant difference. This includes having current contact information, medical records, and emergency plans. For instance, if a family member has a medical emergency, having their latest medical records and healthcare directives readily available can ensure they receive the appropriate care quickly, relieving some of the pressure during a stressful time.
Keeping your family documents organised and up to date makes it easier for you and your loved ones to access important information when needed. This is particularly important in times of stress or grief, such as after the loss of a family member. Having all necessary documents in order can simplify the process of settling estates and managing affairs.
Outdated documents can lead to misunderstandings and disputes among family members. By regularly updating your documents, you can ensure that your intentions are clear and reduce the risk of misinterpretation. This helps maintain family harmony and prevents conflicts during difficult times.
Life is full of changes, from marriages and divorces to the birth of children and changes in financial status. Keeping your family documents up to date allows you to adapt to these changes and ensure that your records accurately reflect your current situation. This can include updating your will, changing beneficiaries, or revising your power of attorney.

Keeping your family documents up to date is essential. Regularly reviewing and updating these documents can provide peace of mind and ensure that your family's needs are met in any situation. Make it a priority to keep your family documents current and organised, and you'll be better prepared for whatever situation may arise.

Relationship breakdowns: Where to next?

Tue, 03 Dec 2024 21:47:46 GMT

Dealing with a relationship breakdown can be tough and emotional. Whether it's a marriage, de facto relationship, or civil union, it's important to know your legal rights and responsibilities. Here are some important steps to you need to consider:

Get legal advice early: Talk to a family lawyer to learn about your rights and responsibilities. They can help you with property division, child custody, and spousal maintenance, ensuring you make well-informed decisions.

Know how property is divided: In New Zealand, the Property (Relationships) Act 1976 generally splits relationship property equally. This covers assets like the family home, vehicles, and savings acquired during the relationship. A lawyer can help you understand any exceptions and navigate the complexities.

Think about child custody and support: The Care of Children Act 2004 focuses on the child's best interests when deciding custody arrangements. Aim for an agreement that keeps the child's relationship with both parents strong. The IRD can help with calculating and managing child support payments.

Consider spousal maintenance: One partner might be eligible for financial support. Factors such as the length of the relationship, standard of living, and earning capacity are taken into account. A lawyer can help you understand your rights and responsibilities.

Look into mediation and dispute resolution: Mediation uses a neutral third party to help both sides reach an agreement. It's often less stressful and cheaper than going to court. The Family Dispute Resolution (FDR) service can help with disputes about parenting and guardianship.

Update your legal documents : After speaking with a lawyer, make sure to update your will, power of attorneys, property titles, insurance policies, trusts, and other legal agreements to match your current wishes and situation.

Take care of your emotional health : It's crucial to look after your emotional well-being. Reach out to friends, family, or a professional counsellor for support. Taking care of your mental health will help you handle the legal and practical aspects of separation more effectively.

Dealing with a relationship breakdown can be really tough, but knowing your legal rights and responsibilities can give you the confidence to move forward.

Remember, you don't have to face this alone—professional support is available to help you through the process.

The Key Factors to Consider When Making an Offer to Purchase a Business

Sun, 17 Nov 2024 20:22:25 GMT

The Key Factors to Consider When Making an Offer to Purchase a Business

Purchasing a business is a significant decision that requires careful consideration and thorough evaluation. Whether you're a seasoned entrepreneur or a first-time buyer, understanding the key factors involved in the process can help you make an informed decision. Here are some of the things to consider when making an offer to purchase a business:

1. What are you purchasing: Assets v share purchase

One of the first decisions you'll need to make is whether to purchase the assets of the business or the shares of the company. An asset purchase involves buying specific assets such as equipment, inventory, and intellectual property, while a share purchase involves buying the shares of the company, effectively taking over the entire business. Each option has its advantages and disadvantages, so it's important to consult with legal and financial advisors to determine the best approach for your situation.

2. Who will be the purchaser: The entity that the business is to operate under

Deciding on the entity that will operate the business is crucial for tax and legal purposes. The entity could be a sole proprietorship, partnership, limited liability company (LLC), or corporation. Each entity type has different implications for GST (Goods and Services Tax) and other tax obligations. It's essential to choose the right entity structure to optimise tax benefits and ensure compliance with regulations.

3. Conduct due diligence on the business

Due diligence is a critical step in the business acquisition process. It involves thoroughly investigating the business to assess its financial health, legal standing, and overall viability. Evaluate the goodwill portion of the purchase, which represents the business's reputation and customer relationships. Additionally, check what plant, fittings, and fixtures are included in the purchase and ensure they are not the property of the landlord or leased under a hire purchase by the vendor.

4. How will you finance the purchase?

Determining how you will finance the purchase is a key consideration. Options include personal savings, bank loans, investor funding, or seller financing. Each financing method has its pros and cons, so it's important to evaluate which option aligns with your financial situation and business goals. Ensure you have a clear plan for securing the necessary funds and managing any associated risks.

5. Assess the employees and key staf f

Understanding the existing workforce is crucial when purchasing a business. Identify any key staff members who are essential to the business's operations and consider whether they need to be retained. Assess the overall employee structure, including their roles, salaries, and benefits. Retaining key employees can help ensure a smooth transition and maintain business continuity.

6. Determine vendor warranties

Vendor warranties are assurances provided by the seller regarding the condition and performance of the business. These warranties can cover various aspects, such as financial statements, legal compliance, and the condition of assets. Determine what vendor warranties are required to protect your interests and ensure that the seller is held accountable for any discrepancies or issues that arise post-purchase.

7. Review lease agreements

If the business operates from leased premises, it's important to review the lease agreements. Check the terms and conditions of the lease, including the duration, rent, and any renewal options. If the land is leased, you will need to obtain consent from the landlord to assign the lease to you. Ensure that the lease terms are favourable and align with your business plans.

8. Warranty as to turnover

Having a clear understanding of the business's turnover and financial performance is essential before making an offer. Request detailed financial statements, including profit and loss statements, balance sheets, and cash flow statements. This information will help you assess the business's profitability and make an informed decision about the purchase price.

9. Vendor assist period

A vendor assist period is a specified duration during which the seller agrees to assist you post-settlement. This assistance can include training, introducing you to key clients, and providing operational support. Determine the length and scope of the vendor assist period to ensure a smooth transition and minimise disruptions to the business.

10. Restraint of trade

A restraint of trade clause is designed to prevent the seller from operating a similar business within a certain period and geographic area post-settlement. This clause helps protect your investment by reducing the risk of competition from the seller. Ensure that the restraint of trade terms are clearly defined and enforceable.

By considering these key factors, you can make a well-informed offer to purchase a business and increase your chances of success. Remember to seek professional advice from legal, financial, and business experts to guide you through the process and address any specific concerns.

Article written by Emma Roberts and Georgia Mossman .

Tips for a Start Up business

Sun, 17 Nov 2024 20:07:50 GMT

Tips for a Start Up business

Starting a business is an exciting journey, but it comes with its fair share of challenges. To help you navigate this path, here are some essential tips to consider before you dive in.

1. Do the numbers work?

Before you even think about launching your start-up, it's crucial to ensure that the numbers add up. Have you talked to an accountant? A professional can help you understand the financial viability of your business idea. Additionally, creating a comprehensive business plan is essential. This plan should outline your business goals, strategies, and financial projections. It will serve as a roadmap for your business and help you stay on track.

2. Choose the right structure

Deciding on the best structure for your business is a critical step. Whether you opt to be a sole trader, a company, or a partnership, each structure has its own set of advantages and disadvantages. If you have a business partner, it's important to regulate that relationship through agreements such as shareholders agreements. These agreements can help prevent conflicts and ensure that everyone is on the same page.

3. Secure funding

Funding is one of the biggest challenges for start-ups. You need to figure out how you will fund the upfront and ongoing costs until your business can support itself. If you have investors or family members helping you, make sure that these arrangements are documented to avoid any issues later on. Clear documentation can prevent misunderstandings and protect your interests.

4. Understand your premises.

If your business requires leased premises, it's important to understand the terms of the lease. Have you negotiated terms that will help with the start of your business? Consider your liability under the lease if things don't go well and what the exit requirements are. It's crucial to have a clear understanding of your obligations and rights as a tenant.

5. Understand your terms of trade

Having clear terms of trade is essential for protecting your business. These terms outline the conditions under which you will do business with your customers and suppliers. Make sure that your terms of trade are comprehensive and protect your interests. This can help prevent disputes and ensure that you get paid on time.

6. Safeguard your intellectual property

Your business name and branding are valuable assets. Make sure that they are protected. Registering your trade marks and copyrights can help prevent others from using your intellectual property without permission. This protection can enhance your brand's value and give you a competitive edge.

7. Get the right insurances

Insurance is a critical aspect of risk management for any business. Ensure that you have all the necessary insurances, including business interruption insurance and professional indemnity insurance. These insurances can protect your business from unforeseen events and liabilities.

8. Protect your personal assets

It's important to protect your personal assets in case things go wrong. Avoiding personal guarantees and placing your family home in a trust are some ways to safeguard your assets. This protection can provide peace of mind and financial security.

9. Plan for the future

Estate planning is often overlooked by start-up owners. What happens to your business if something happens to you? Having a will and other estate planning documents in place can ensure that your business continues to operate smoothly. This planning can protect your business and provide for your loved ones.

10. Recognise individual differences

Every person's situation is unique, even with relatively similar businesses. It's important to tailor your strategies to your specific circumstances.

It’s worth noting that, according to Stats NZ, approximately 20% of businesses in New Zealand fail within their first year. This statistic highlights the challenges that new businesses face in the early stages. It's essential to be aware of these risks, some of which you may need to take, and take steps to protect yourself as much as possible.

Starting a business is a challenging but rewarding endeavour. By considering these tips and planning carefully, you can increase your chances of success and build a strong foundation for your start-up.

Article written by Mark Goodson and Tim Rabone

Navigating the Sale of a Business

Sun, 20 Oct 2024 22:51:56 GMT

Some Key Considerations

Selling your business involves many steps, from evaluating assets to securing necessary consents. This article explores some of the key aspects of selling a business, focusing on tangible vs. intangible assets, the role of goodwill and restraint of trade, the importance of landlord consent and lease assignment, and possible tax implications for you.

Tangible vs. intangible assets

When selling your business, it’s essential to distinguish between tangible and intangible assets. Tangible assets are physical items that the business owns, such as machinery, equipment, inventory, and real estate. These assets are relatively straightforward to value because they have a clear market price and can be sold independently.

Intangible assets, on the other hand, do not have a physical presence but are crucial to the business’s value. These include intellectual property (like patents and trade marks), brand reputation, customer lists, and goodwill. Goodwill represents the business’s reputation and customer relationships, which can significantly enhance its value. Unlike tangible assets, intangible assets can be more challenging to quantify, but they are often what makes a business attractive to potential buyers.

The role of goodwill and restraint of trade

Goodwill is an important component in the sale of a business. It reflects the value of the business’s brand, customer base, and overall reputation. When a business is sold, the buyer often pays a premium for this goodwill, recognising that it can lead to future profits.

To protect this investment, buyers typically include a restraint of trade clause in the sale agreement. This clause prevents you, as the seller, from starting a competing business within a specified area and timeframe. The reasoning for this is to ensure that you don’t undermine the value of the goodwill by drawing customers away from the new owner. The restraint of trade must be reasonable in scope and duration to be enforceable, balancing the buyer’s need to protect their investment with your rights to earn a livelihood.

Landlord consent and lease assignment

Another crucial aspect of selling a business is dealing with leased premises. If the business operates from a leased property, the lease agreement must be assigned to the new owner. This process requires the landlord’s consent, which is not always straightforward.

Landlords typically require the new tenant to meet certain criteria, such as financial stability and a good track record. The lease assignment process usually involves providing references for the prospective tenant, evidence of their financial viability, and sometimes paying the landlord’s legal fees. It’s important to review the original lease agreement to understand the specific requirements and ensure that the landlord’s consent is obtained in writing.

Failure to secure landlord consent can jeopardise the sale, as the new owner may not be able to operate the business from the same location. Therefore, it’s advisable to start this process early and work closely with your legal advisors to navigate any potential hurdles.

Tax implications

When selling a business in New Zealand, it's important to understand the tax implications. The tax treatment varies between asset and share sales, with each type of asset potentially being taxed differently. Depreciable assets like machinery may have tax implications related to depreciation recovery, and the sale of goodwill and other intangible assets may have specific tax considerations. Obtaining professional tax and accounting advice early in the sale process can help ensure these assets are correctly valued and reported.

Additionally, Goods and Services Tax (GST) may apply depending on the sale structure. It’s crucial to determine if the sale is a going concern, as this affects GST treatment. Given the complexity of tax regulations, working with legal and tax professionals is essential to navigate the specific requirements and ensure compliance with all tax laws.

Understanding, and taking into consideration, these key elements of your business sale can ensure a smooth transition of your business from you to the buyer. We have the expertise to facilitate a successful sale and help you maximise the value of your business.

A Step-by-Step Guide to Residential Subdivisions

Tue, 24 Sep 2024 23:23:41 GMT

Subdividing a residential property can be quite complicated, and may take a lot of time. However, with thoughtful planning and the right help from professionals, it can also be a very rewarding project. This process involves breaking up a larger piece of land into smaller sections, which can then be sold or developed separately.

To make this journey easier for you, we’ve put together a detailed guide. This guide will walk you through each step of the subdivision process, helping you understand what to expect and how to prepare. With the right information and support, you can successfully navigate this process and achieve your goals.

1. Consult the Council

Before starting a subdivision project, consult with your local council. They can tell you if dividing your property is possible, and identify any restrictions or requirements that may apply. The council will explain zoning laws, minimum lot sizes, and other important regulations.

2. Check with your Lender

If you have a mortgage on your property, it’s crucial to check with your lender to ensure they consent to the subdivision. Subdividing a mortgaged property can affect your loan terms, and your lender might need to issue new mortgage documentation.

3. Engage a Surveying Company

You will need to hire a surveying company to draft subdivision plans and determine what utilities are required. The surveyor will prepare a resource consent application to present to the council for approval. They will also coordinate with utility companies to arrange any required physical works and easements. Easements may include rights of way, the right to convey electricity, telecommunications, water, sewage, and stormwater.

The surveyor will work closely with the council to obtain the necessary certifications and lodge the documentation with Land Information New Zealand (LINZ). Be prepared to pay a development levy to the council before final approval is granted. Once all work is completed and the council has signed off on the subdivision plan, the final plan – the ‘deposited plan’ is lodged with LINZ.

4. Involve Your Lawyer

Let your lawyer know about your plans to subdivide early on. They will work with the surveyor and your bank to get approval for the subdivision and manage any new mortgage paperwork. Your solicitor will also advise on and prepare land covenants, which can impose restrictions on the subdivided properties. These covenants might limit the size or height of buildings, specify building materials, or regulate planting and property maintenance.

Your lawyer will prepare new title and easement documentation, and you will need to sign these documents to finalise the subdivision.

Subdivisions involve multiple parties and can be expensive. It’s wise to obtain cost estimates from the council, surveyor, and lawyer before committing to the process. Understanding the financial and time commitments involved will help you make informed decisions and ensure a smoother subdivision experience.

Understanding Separation and Relationship Property Agreements

Sun, 22 Sep 2024 23:09:08 GMT

Separation and relationship property agreements are crucial legal tools that can be made at any time - before, during, or after a relationship.

These agreements help clarify who owns what during and after a relationship ensuring that each party knows who owns which assets.

The key law in this area in New Zealand is The Property (Relationships) Act 1976 (PRA). This law says that partners usually share ownership of:

· the family home;

· family belongings (like furniture); and

· any property acquired during the relationship.

The PRA states that any property bought during the relationship is usually considered shared property and is typically split equally if the relationship ends. The family home is treated differently; it is usually shared equally, no matter who owned it before the relationship or how much each partner contributed.

Section 21 Agreements

To ensure a Section 21 agreement is valid, it must meet specific requirements:

· The agreement must be in writing and signed by both parties.

· Each party must receive independent legal advice before signing.

· The signatures must be witnessed by a lawyer.

· The witnessing lawyer must certify that they explained the agreement’s effects and implications to the signing party.

Even if an agreement satisfies these requirements, a court can set aside (cancel) an agreement if it considers that the agreement would cause serious injustice. For an agreement to be cancelled, this generally depends on whether the agreement was entered into freely and if the terms of the agreement are not fair.

Contracting Out Agreements

The couple in the relationship may choose to enter a Section 21 agreement. This agreement is a legal contract that allows couples to decide how to divide their property if they separate, overriding the default rules set by the Property (Relationships) Act.

Commonly known as ‘pre-nups’, these agreements are essential if you’ve been in a de facto relationship for three years or more, are married, or in a civil union. The PRA applies here. A de facto relationship is defined as “living together as a couple,” which can include not physically living together but demonstrating a commitment to a shared life.

Why have one? If you have any concerns, it’s smart to create a contracting out agreement. These agreements are particularly important in second relationships. Recent legal cases show that putting a home in a trust before entering a PRA relationship won’t protect your assets. Agreements not signed and certified by lawyers won’t hold up in court. These agreements let you decide how to manage your assets and protect certain items if the relationship ends.

Post-Separation Agreements

These agreements clarify who keeps what after a separation and whether one person needs to pay out the other to achieve an equal division of the relationship property. It’s important to finalise a separation agreement quickly. Until it’s signed, all shared property remains shared. This means if you buy a house or pay off a mortgage alone, it’s still considered shared property, and your ex could claim it later. They might also have a claim to your estate if you pass away before finalising the agreement.

Separation and relationship property agreements provide important legal protection. Understanding the PRA and the requirements for these agreements helps ensure your assets are safe and ownership is clear. Whether starting a new relationship, currently in one, or recently separated, it’s wise to seek legal advice and consider these agreements to protect your interests.

Our team has experts in this area who are ready to help you navigate your options and make the best choices for your future.

A Guide to Understanding Mortgages and Refinancing

Sun, 22 Sep 2024 21:24:42 GMT

What is a mortgage?

A mortgage is a loan specifically designed for purchasing real estate. It involves borrowing money from a lender, typically a bank, to buy a property. The property itself serves as collateral for the loan, meaning the lender can take possession of it if the borrower fails to repay the loan as agreed. Mortgages are usually repaid over a long period, often 25 years, through regular monthly, or fortnightly, payments.

How we help with mortgages

Navigating the mortgage process can be complex, but we are here to assist you every step of the way:

Receive loan documentation: We will check all necessary loan documents from your lender to ensure everything is in order.
Meet with you to execute the required documents: We will arrange a meeting to go over and sign all the necessary paperwork.
Arrange drawdown of your lending: We will coordinate with your lender to ensure the funds are released at the appropriate time.
Register new mortgage: We will handle the registration of your new mortgage with Land Information New Zealand (LINZ), ensuring all legal requirements are met.

What is a priority sum?

A priority sum is an amount specified in the mortgage that takes precedence over other claims or charges on the property. It ensures that the lender has the first claim on the property up to the specified amount in case of default.

Costs involved in a mortgage

When taking out a mortgage, several costs may be incurred, including:

Application fees: Charges for processing your mortgage application.
Registration fees: Costs associated with registering the new mortgage with LINZ.
Legal costs: Fees for legal services provided during the mortgage process.

What is refinancing?

Refinancing involves replacing your existing mortgage with a new one, typically to take advantage of better interest rates, change the loan term, or access equity in your property. This process can help reduce your payments, shorten the loan term, or provide funds for other financial needs.

How we help with refinancing

Once you have made arrangements with your new lender, we assist with the following steps:

Receive loan instructions: We will obtain the necessary instructions from your lender.
Meet with you to execute the required documents: We will arrange a meeting to sign all the necessary refinancing documents.
Arrange discharge of your existing security: We will coordinate the release of your current mortgage.
Handle the drawdown of the new lending: We will ensure the funds from your new loan are properly disbursed.
Take care of the repayment of your existing mortgage: We will handle the repayment of your current mortgage with the funds from the new loan.
Register the discharge and new mortgage: We will manage the registration of the discharge of your old mortgage and the new mortgage with LINZ.

Costs involved in refinancing

Refinancing can involve several costs, such as:

Early repayment fees: Penalties for paying off your existing mortgage early, if applicable.
Release fees: Charges from your existing bank for releasing the current mortgage.
Application fees: Charges for processing your new mortgage application.
Registration fees: Costs for registering the discharge and new mortgage with LINZ.
Legal costs: Fees for legal services provided during the refinancing process.

By understanding the mortgage and refinancing processes and the associated costs, you can make informed decisions that best suit your financial needs and goals. We’re here to guide you through each step, ensuring a smooth and efficient experience.

Probate – what is it and how does it work?

Mon, 26 Aug 2024 23:14:23 GMT

Probate is a legal process that confirms the validity of a deceased person's will and grants the executor the authority to manage and distribute the estate in accordance with the will. Probate ensures that the deceased's wishes are respected and provides a clear legal framework for the distribution of the estate.

When someone passes away, their will outlines who inherits their property and assets. To execute the will, the executor must apply to the High Court for probate. This is essentially the court's approval that the will is valid, and the executor is recognised to carry out the will's terms and to administer the estate. The process involves several steps:

obtaining the death certificate and the original will;
If assets exceed $15,000 in any one institution, then applying for probate;
notifying beneficiaries and creditors;
gathering and valuing the deceased's assets;
paying any debts and taxes; and
distributing the assets to the beneficiaries as per the will.

The entire estate administration process can take several months.

What if there isn’t a will?

It's important to note that if the deceased did not leave a will, the process to legally manage and distribute their estate is different and involves applying for Letters of Administration.

Letters of Administration is a legal document issued by the High Court that authorises a person, known as the administrator, to deal with the deceased's assets and liabilities. The administrator has the responsibility to manage the estate, which includes tasks like:

closing accounts;
paying debts; and
distributing assets to the rightful beneficiaries according to the law.

If the deceased's assets do not exceed $15,000 from each institution (e.g. savings, shares, Kiwisaver), the estate is considered small, and the next of kin may be able to manage it without the need for Letters of Administration. However, if the estate includes property or larger amounts of assets, then the court's permission is required to appoint an administrator.

This process ensures that the estate is handled fairly and according to legal protocols, providing a clear path for the distribution of assets in the absence of a will. However, it can take longer than a probate application and can take three to four months just to obtain the grant.

Expert advice to on wills and asset protection

As legal professionals, our team are experts in wills, enduring powers of attorney and asset protection. If you would like to know anything more, just call us – we’re here to help.

Enduring Powers of Attorney

Thu, 22 Aug 2024 23:14:33 GMT

Do you know why Enduring Powers of Attorney (EPAs) are important? Have you considered setting them up? Perhaps you’re waiting for the ‘right moment’. Regardless, planning ahead with EPAs ensures they’re ready well before you actually need them.

What are EPAs?

An EPA is a document that grants legal authority to someone to manage your affairs if you become unable to do so yourself. Unlike a will, which takes effect after your death, an EPA is active while you’re still alive. There are two types of EPAs, each serving a different purpose:

one to look after your personal care and welfare.
the other for managing your property.

In an EPA document, you are known as the ‘Donor’ and the person or people you appoint to make decisions on your behalf are called your ‘Attorney’.

Why do I need EPAs?

It’s crucial to have your EPAs set up before you need them; without them, it becomes challenging for your family and loved ones to ensure you get the care and support you require. If you’re in an accident, develop a serious illness, or become mentally incapacitated, you might not be able to make or communicate decisions yourself.

Many people mistakenly believe their partner or family can automatically make decisions for them in such situations. However, without EPAs in place, a Family Court application for ‘Orders to have a Welfare Guardian and/or Property Manager Appointed’ must be completed. This process is expensive and time-consuming, leaving you without someone who can legally manage your welfare and property when you need it most.

EPA for personal care and welfare

An EPA for personal care and welfare covers decisions related to your care and wellbeing. Your personal care and welfare Attorney can make decisions about your care, medical treatment, and living arrangements, including rest home care if needed. However, your Attorney cannot refuse lifesaving medical treatment on your behalf, consent to medical experimentation, or make decisions about marriage, divorce, or adoption for you.

An EPA for personal care and welfare can only be activated if you become mentally incapable. The determination of your mental incapacity must be made by a relevant health practitioner, not your Attorney.

EPA for property

An EPA for property covers decisions relating to the assets and property you own, including financial assets like bank accounts or investments, or specific property listed in your EPA. When you appoint an attorney or attorneys to manage your property, they can handle your property on your behalf if you are unable to do so.

Your property Attorney can assist by paying your bills, managing your banking, signing documents, and making decisions about your property as needed. Unlike the EPA for personal care and welfare, your EPA for property can take effect at a time of your choosing:

While you are mentally capable and continue in effect if you lose capacity; or
Only once you have lost capacity.

Choosing the first option ensures you’re covered if you have an accident and are still mentally capable but physically unable to manage your property or pay your bills while injured. In this case, your Attorney is authorised to pay your bills and keep things running smoothly until you recover.

If you choose the second option, your Attorney will take over decision-making only once a doctor has certified that you have lost mental capacity.

Can I change or cancel them?

You can revoke or partially revoke (cancel) your EPAs at any time while you have mental capacity. If you decide to revoke them, you should advise your Attorney(s) of this decision in writing.

What do I need to know before I start the process?

When setting up EPAs, you need to appoint a trusted person or people to act as your Attorney. This could be the same individual for both property and personal care and welfare, or you might choose different people for each responsibility. The choice is yours – the person you appoint does not have to be a family member. However, your Attorney(s) must be at least 20 years old, not bankrupt, and free from any form of incapacity.

Although your Attorney has the authority to make decisions on your behalf, the Protection of Personal and Property Rights Act 1988 ensures they act in your best interests. Your Attorney must consult with you as much as possible before making any decisions and should encourage you to act on your own behalf whenever you can. If you or any concerned party believes your Attorney is not acting appropriately, the Family Court can step in.

Things to think about before you set up EPAs

Consider who you would like to appoint as your attorney(s) and whether you want to designate a backup person in case your chosen attorney(s) are unable to act. Talk to the person or people you wish to appoint to ensure they are willing to take on this role. Also, think about whether you want your attorney(s) to consult with or provide information to anyone else regarding the decisions they are making or decisions you have made. You can include any restrictions or special instructions for your attorney(s) within your EPAs.

For personal care and welfare, only one attorney can act at a time, but it is recommended that you appoint an alternative attorney. For property, you can appoint more than one attorney at the same time as well as appointing alternatives. You can decide if you want them to act jointly or on their own or allow a combination of both.

Once you’ve made these initial decisions, contact a lawyer or legal executive to schedule an appointment. They will review your options, answer your questions and prepare your EPAs.

EPAs and wills

When setting up EPAs, you might also want to create a will or update your existing one at the same time - keeping in mind that EPAs are only applicable while you are alive. For further information on why you need a will and how to create one, see our article ‘Why it’s important to have a will’ here .

Get good advice from people you can trust

Our friendly team can explain the EPA process in plain English and advise you on what would work best for your specific circumstances. If you'd like to know more about EPAs, wills or estate planning, just give us a call – we’re here to help.

Why having a will is so important

Mon, 19 Aug 2024 23:14:50 GMT

Creating a will is an essential part of managing your affairs and ensuring your assets are distributed according to your wishes after your death.

A will is a legal document that details how you want your property and possessions to be handled, and it can also specify guardianship for any minor children. The importance of having a will cannot be overstated; it provides direction during a time that can be emotionally difficult for your loved ones.

Without a will, the administration of your estate follows the default legal rules, which might not match your personal wishes or the needs of your beneficiaries. For example, the Administration Act 1969 specifies how assets are distributed, which may not align with your intentions. This could result in some family members receiving less than you intended or non-family members being excluded entirely.

Additionally, not having a will can lead to family disputes, potentially causing lengthy and costly legal battles that diminish the estate’s value. By having a will, you can help avoid these conflicts.

The importance of having a will lies in its ability to provide certainty, protect your assets, and uphold your legacy. It's a fundamental component of estate planning that can spare your loved ones additional stress and ensure that your final wishes are honoured.

Expert advice on wills and asset protection

As legal professionals in estates, wills and trusts, we can provide expert advice and ensure that your will is legally sound and less likely to be challenged. Our team is here to help. Contact us here.

Want to know about Enduring Powers of Attorney and why you need to have them? Read more here .

Aging and asset planning – let’s have that discussion

Wed, 14 Aug 2024 23:15:08 GMT

Talking about the future, especially when it involves legalities and finances, can be a bit daunting, right?

Thankfully, in Aotearoa New Zealand, we take a proactive stance on these matters. It's about making sure that as you get older, you’re not just surviving but thriving, with your rights intact and your finances secure.

You might have heard the term ‘elder law’. This isn't just legal jargon; it's a safeguard for your later years, covering everything from care plans to estate management, and even protection against abuse. It's about dignity, ensuring your quality of life doesn't diminish with age.

Asset planning is another piece of the puzzle. Think of it as a blueprint for your wealth, laying out how to keep it safe and sound for the future. It's not about having a fortune; it's about making the most of what you have. Whether it's securing eligibility for care subsidies, shielding a partner's assets, or sidestepping the lengthy probate process, it's all geared towards one thing: peace of mind.

These aren't just dry legal discussions; they're conversations that lead to action. We're talking wills, directives for medical care, even appointing guardians—all crucial documents that reflect your wishes loud and clear. And the benefits? They're significant. Imagine easing the financial burden of home or nursing care, preserving what you’ve worked hard for to pass on to your children, or simply knowing your assets are being handled wisely for the generations to come.

It's a common misconception that this is all for the wealthy. Not at all. It's for anyone who wants control over their financial and health-related decisions as they age. Starting these talks early means you’re prepared, your assets are protected, and your wishes are known. It's not just planning; it's about ensuring your legacy.

Get good advice from people you can trust

If you'd like more information, we can give you the advice you need to navigate these waters. It's about taking care of our own, now and in the years to come. To get started, just give us a call . We’re here to help.

What changes does the unit titles amendment act 2022 bring in for unit title ownership?

Tue, 18 Jun 2024 01:15:53 GMT

Unit title ownership is very common in a building development where there are multiple owners, such as apartments, townhouses or office blocks. You own your unit and a part of the common property, such as lifts, lobbies, driveways or gardens. You are also part of a body corporate that takes care of the common property and makes rules for the development. You have to pay fees to the body corporate and follow its rules.

The changes to the Unit Titles Amendment Act 2022, which came into effect from 9 May 2024, may affect you if you own this type of property. This Act brings in detailed rules to improve the ownership and management of unit title properties. It’s a big leap towards making the buying and managing process open, just, and professional.

This new law provides greater protection for people who buy or own unit title properties. It allows them to get all the important details about a property early on, which means they can understand what they’re getting into before they decide to invest. Having this information early helps buyers make better choices, making sure they know exactly what they’re buying. Also, the law strengthens the position of buyers by giving them a strong set of tools to deal with any issues that might come up after they’ve made the purchase.

For the companies that manage these properties, the bodies corporate, the act sets out a clear way of working. It requires them to meet strict professional standards and introduces a code of conduct to ensure they’re they are skilled and carry out their responsibilities honestly.

The act also makes bodies corporate plan properly for big repairs and upkeep, to avoid surprise costs and keep properties in good shape. They must have a maintenance plan that covers all future work, costs, and informs the owners.

Finally, the act improves how disputes are settled, offering fairer and quicker ways to solve issues.

What the brightline test changes mean for you

Wed, 12 Jun 2024 01:13:03 GMT

The Brightline test is a tax regulation that applies to residential property sales. From 1 July 2024, the bright-line property rule will be reduced from ten years to two years. This means a property sold after this date will only be impacted by the bright-line tax if it is sold within a two year period. It is important to note that this new rule only applies to agreements that are entered into after 1 July 2024. It is the agreement date not the transfer date that is important here.

In addition to this change there are changes to the main home exemption and new rollover relief for when property is sold to an associated person. Inland Revenue has a lot of helpful information and examples on its website to help you understand the Brightline test better. This will enable you to make smart choices about your property and know what to expect when it comes to taxes. Always consult a tax advisor for personalised advice prior to selling a property.

The residential tenancies act 1986

Thu, 14 Mar 2024 02:10:08 GMT

The residential tenancies act 1986

The Residential Tenancies Act is a legal framework that guides the relationship between landlords and tenants in New Zealand. It aims to make renting a fair and smooth experience for both sides. Some of the key aspects of the Act are:

It ensures that rental properties are safe and healthy, and makes landlords follow the healthy homes’ standards – see more about this below.
It protects tenants from excessive rent hikes by allowing only one rent increase per year, and making landlords give at least 60 days’ notice before raising the rent.
It prevents landlords from charging unreasonable amounts of money as a bond or rent in advance, by capping the bond at four weeks’ rent and the advance rent at one week’s rent.
It clarifies the reasons and methods for ending a tenancy, and gives tenants more stability by lengthening the notice periods for some kinds of termination.
It creates the Tenancy Tribunal as an impartial authority that can settle conflicts between landlords and tenants, and uphold the act.
It imposes penalties and remedies for violations of the act, such as unlawful eviction, damage to property, or harassment.

HEALTHY HOME STANDARDS

The healthy homes standards became law on 1 July 2019 and introduced specific and minimum standards for heating, insulation, ventilation, moisture entry and drainage, draught stopping, and smoke alarms in rental properties.

Between 1 July 2021 and 1 July 2025, all private rentals must comply with the healthy homes’ standards within certain timeframes from the start of any new, or renewed, tenancy. Different timeframes depend on the type of rental home. The standards are intended to benefit both landlords and tenants by reducing health risks, maintenance costs, and disputes.

By making your rental property compliant with healthy homes standards, you will not only meet your legal obligations as a landlord, but also provide a warmer, drier and healthier home for your tenants.

CHANGES TO BE MADE TO THE RESIDENTIAL TENANCIES AMENDMENT ACT 2020

Some significant changes were introduced in The Residential Tenancies Amendment Act 2020. One of the changes meant landlords lost the ability to end a tenancy without giving a reason, provided they gave 90 days’ notice. The current Government plans to reinstate the prior law which means that landlords will, again, be able to give notice to their tenants to move out without providing a reason why.

The Government also intends to reduce tenants’ required notice period for the end of a periodic tenancy from 28 days to 21, and will reduce the amount of time that landlords have to give if they want to sell, do renovations, redevelop, or move in to a property from 90 days to 42.

Investors will regain their ability to deduct home loan interest costs from their rental income for tax purposes and the Bright-line test will return to two years. The previous Government pushed out the amount of time that investors had to hold on to an existing property to avoid being charged tax on any capital gains, to 10 years. The Government has said it will return this to the original two years.

There may also be a change to allow landlords to ask for extra rent to cover potential damage to a rental property from an animal. At the moment, landlords cannot charge more than four weeks’ rent as a bond.

Buying and selling bare land or sections in new zealand

Tue, 05 Mar 2024 02:06:09 GMT

Buying and selling bare land or sections in new zealand

If you have a vision of owning a piece of land in New Zealand, whether to build your dream home, start a rural business, or invest in property, you are in for an exciting journey. But before you take the plunge and buy or sell a section or bare land, there are some important things you need to know.

Here are some tips to help you make a smart decision.

1. Find out how much the land is worth in the area you want to buy or sell. You can use online property sites, local real estate agents, or property valuers to get an idea of the price range and demand for the land.

2. Check the zoning, covenants, easements, and consents that apply to the land. These may affect what you can do with the land, such as building, subdividing, farming, or planting. You can find this information from the local council, Land Information New Zealand (https://www.linz.govt.nz), or the seller.

3. Inspect the land thoroughly and assess its suitability for your needs. Consider factors such as location, access, aspect, soil quality, drainage, wind exposure, views, and services. You may want to consult an architect, builder, engineer, or surveyor for professional advice.

4. Arrange your finance and budget for the costs of buying and selling land. You may need a home loan pre-approval from a bank or lender to secure your purchase. You may also need to pay for legal fees, valuation fees, survey fees, consent fees, rates, and taxes.

5. Negotiate the terms and conditions of the sale with the seller or their agent. You may want to include clauses such as due diligence, finance, title, and builder’s report. You will need to sign a sale and purchase agreement and pay a deposit once you reach an agreement.

6. Complete the settlement process and transfer the ownership of the land. You will need to pay the balance of the purchase price and any other fees on the settlement date. You will also need to register the transfer of title with Land Information New Zealand.

Buying and selling bare land or sections in New Zealand can be a rewarding experience if you do it right. You just need to be aware of the pros and cons and plan ahead. Happy hunting!

What is a property sharing agreement and should I have one?

Thu, 29 Feb 2024 02:02:29 GMT

What is a property sharing agreement and should I have one?

A property sharing agreement is a document that sets out the rights and obligations of each of the owners where a group of people purchase a property together. It is a useful document to have when buying a property with friends, flatmates, siblings, or extended family, as it can help to avoid disputes, and protect each person’s interests. It can also be required by some banks before lending to a group.

WHAT DOES A PROPERTY SHARING AGREEMENT COVER?

A property sharing agreement generally includes information such as:

The address and purchase price of the property.
The details of the parties who are buying the property.
The initial cash contribution and percentage share of each co-owner.
The purpose for purchasing the property.
How the parties plan to pay for outgoings, mortgage payments, maintenance and repairs.
Whether the parties intend to seek independent legal advice on the implications of the agreement.
Who the mortgagee is (the bank or other lender).
Whether the parties want a right of first refusal option, which means that if one party wants to sell their share, they have to offer it to the other co-owners first.

But be aware that there are both benefits and risks to a property sharing agreement.

Benefits can include that the agreement will:

Help you get on the property ladder faster, by pooling your resources with others.
Reduce the risk of disputes and misunderstandings, by clarifying the expectations and responsibilities of each co-owner.
Protect your interests, by specifying how decisions are made, and how conflicts are resolved.
Provide flexibility, by allowing you to sell your share or buy out another co-owner if your circumstances change.

Some of the risks of a property sharing agreement are that it can:

Complicate the process of buying and selling a property, as you have to agree with the other co-owners on the terms and conditions.
Expose you to liability for the other co-owners’ debts, as co-borrowers are usually jointly and severally liable for the mortgage.
Lead to disputes and misunderstandings, if the co-owners have different expectations or circumstances change.
Limit your flexibility, as you may not be able to sell your share, or buy out another co-owner, without their consent or the consent of the bank.

To minimise your risks, it is advisable to make a valid property sharing agreement that covers all the important aspects of the arrangement, such as how decisions are made, how costs are shared, and how disputes are resolved. Make sure all proposed co-owners then sign it.

We have experts who can help you to draft your agreement, or to review one that has been provided to you.

Why should I have a will and why do I need to renew it?

Tue, 20 Feb 2024 01:58:46 GMT

Why should I have a will and why do I need to renew it?

Having a will is one of the most important things you can do to protect your loved ones and your assets. A will is a legal document that sets out your wishes for how your property, money, and personal belongings should be distributed after you die. It also lets you name a person, or organisation, as executor to manage your estate.

If you don’t have a will, the law decides who gets what from your estate, and this may not reflect your wishes, or the needs of your family. You may also leave behind unnecessary stress, costs, and delays for those you care about. A will can help you avoid these problems, and give you peace of mind that your wishes are carried out.

Once you have a will in place, you also need to review it regularly and update it when your circumstances change. For example, if you get married, divorced, have children, buy or sell property, or inherit money, you may need to change your will to reflect these changes. If you get married, even if you already have a will, the marragie revokes it. Otherwise, your will may become invalid or outdated, and cause confusion or conflict among your beneficiaries. The rule of thumb is that you should review your will at least every five years, or whenever there is a significant change in your life.

In New Zealand, there are some legal requirements for making a valid will, such as being at least 18 years old, being of sound mind. You should store your will in a safe place and let your executor and family know where it is.

Having a will and renewing it often is the best way to ensure that your final wishes are respected and that your loved ones are taken care of. You can get expert advice from our team of lawyers if you need help. Don’t delay – make or update your will today!

5 Tips for First Home Buyers

Mon, 12 Feb 2024 01:55:59 GMT

Buying your first home is a big decision and a rewarding experience. We are here to support you along the way and make the process as smooth and easy as possible. Here are some tips and steps to help you get into your first home sooner.

1. TALK TO A LENDER

One of the first things you need to do is to sort out your finances and get a pre-approval for a home loan. This will give you an idea of how much you can borrow and what you can afford. Don’t just stick to your usual bank, talk to a mortgage broker who will be able to consider different lenders for you. Mortgage brokers can help you find the best loan for your needs and negotiate better terms and interest rates on your behalf. Better deals and lower interest rates can save you considerable money in the long run. Some lenders may also be able to lend you more than 80% of the property’s value, depending on your situation and the market conditions. This means you may not need a 20% deposit to buy your first home. However, you should be aware of the risks and costs of borrowing more than 80%, such as higher interest rates and fees, and the need for lenders mortgage insurance.

2. KIWISAVER WITHDRAWAL

If you have been a member of a KiwiSaver scheme for at least three years, you may be able to withdraw some or all of your KiwiSaver savings to put towards buying your first home. This can help you boost your deposit and get into your first home faster. However, you should also consider the impact of withdrawing your KiwiSaver funds on your retirement savings and seek financial advice before making this decision. There are some eligibility criteria and conditions that apply, so contact us to find out more.

3. FIRST HOME GRANT

If you are eligible to withdraw your KiwiSaver funds to buy your first home, you may also qualify for a First Home Grant from Kāinga Ora. This is a government initiative that provides a one-off payment of up to $10,000 for a single buyer or up to $20,000 for a couple, depending on the price, location and type of home you are buying. For the majority of people this will be $5,000 for a single buyer and $10,000 for a couple, unless you are buying a new build. The grant can help you with your deposit and reduce the amount you need to borrow. To apply for the grant, you need to meet some income, savings, and property criteria, and you need to live in the home for at least six months. For more information and to apply for a pre-approval, visit the Kāinga Ora website .

4. OPEN HOMES

Once you have your finances sorted and know what you can afford, it’s time to start looking for your dream home. Open homes are a great way to see what’s available in your area and get a feel for the market. You can also use online tools and apps to search for properties that match your criteria and budget. When you go to open homes, be prepared to ask questions and take notes. You may want to check the condition of the property, the size and layout, the neighbourhood, the amenities, and any other features that are important to you. You may also want to talk to the real estate agent and find out more about the property, the seller, and the method of sale. They may have some useful insights or tips that can help you with your decision.

5. TALK TO A LAWYER

When you find a property that you like and want to make an offer, you should talk to a lawyer or a legal executive before you sign anything. They can help you understand the legal aspects of buying a home and advise you on the best way to protect your interests. They can also help you with the paperwork, the due diligence, the settlement, and the transfer of ownership.

We have a team of experienced lawyers and legal executives who can assist you with your first home purchase. Contact us today and we can get started right away.

Ready to begin your journey to home ownership? Download our easy to understand First Home Buyers' Guide to get you started!

Gifts Or Loans From Parents

Wed, 07 Feb 2024 01:53:07 GMT

GIFTS OR LOANS FROM PARENTS

Buying a property in New Zealand can be challenging, especially for first-time buyers who may struggle to save enough for a deposit. One option that some people consider, is using gifts or loans from their parents to help them finance their purchase. However, this option comes with some risks and implications that should be carefully weighed up before making a decision.

A gift is a sum of money that is given to someone without any expectation of repayment or interest. A loan is a sum of money that is lent to someone with an agreement to repay it over a certain period of time, with or without h interest. Both gifts and loans can affect the eligibility and affordability of a mortgage, as well as the tax and legal implications for both the buyer and the parents.

If the money is a gift, the buyer will need to provide a signed declaration from their parents stating that the money is a gift and that they have no claim over the property or the repayment of the money. The buyer will also need to declare the gift to their lender and to the Inland Revenue Department (IRD), as it may affect their income tax and student loan obligations. The lender may also require the buyer to have some savings of their own, as a gift does not demonstrate the buyer’s ability to save and repay a mortgage.

If the money is a loan, it can be secured by a loan agreement or by a Deed of Acknowledgment of Debt. The buyer will need to provide a written agreement from their parents outlining the terms and conditions of the loan, such as the amount, interest rate, repayment schedule, and security. The buyer will also need to disclose the loan to their lender and to the IRD, as it will affect their debt-to-income ratio and their borrowing capacity. The lender may also charge a higher interest rate or require a larger deposit, as a loan increases the risk of default. Generally, for the bank to accept the loan they will require confirmation that the loan is interest free and that the parents will not take security for the loan.

The parents will also need to consider the tax and legal implications of lending money to their child, such as whether they need to register as a financial service provider, whether they need to pay income tax on the interest they receive, and whether they have a claim over the property if the buyer defaults on the loan.

Using gifts or loans from parents can be a viable option for some buyers who need extra financial assistance to buy a property in New Zealand. However, it is not a decision that should be taken lightly, as it involves significant risks and responsibilities for both parties.

We advise you to seek independent legal and financial advice before entering into any such arrangement and note that any money received is presumed to be a gift unless documented as a loan so it is important communicate clearly and honestly with each other about the expectations and consequences of the transaction.

10 key points to consider when purchasing your first home

Fri, 27 Oct 2023 00:49:58 GMT

1. What you can really afford.

Use your head not your heart.

2. Get Mortgage Pre Approval

Providing you meet the criteria, your bank should be able to give pre-approval for a set amount of mortgage funding. This is essential you know what your upper limit is when you go looking for a new home

3. Eligibility for Kiwisaver first Home Withdrawal

Most buyers will need a deposit that is 20 per cent of the property’s value, but it does depend on your situation. It helps if you can access your KiwiSaver funds but you must have had an account for a minimum of three years.

4. Eligibility for a Housing New Zealand Home Start Grant.

You could be eligible for a KiwiSaver HomeStart grant of up to $5000 to purchase an existing home, or up to $10,000 when building or purchasing a new home. If there are two of you and you are both eligible, your HomeStart grant could be as much as $20,000. This can be added to any savings in KiwiSaver, which may be able to be withdrawn to help fund a deposit.

5. Look beyond the Paint

A Builders report, Land Information Memorandum (LIM) and a title check are essential investigations to protect your interests and making sure you are fully aware of what you are buying.

6. Additional costs

Ensure you have budgeted for additional costs such as Lawyer’s fees, building report, LIM report and moving costs.

7. Ongoing costs

Factor ongoing costs into your budget such as Insurance, rates and possible Body corporate fees if purchasing a unit title.

8. Negotiate your Mortgage rate

Shop around for the best mortgage rates. There is no obligation to go with your regular bank.

9 Don’t let yourself be pressured

Take your time. Your first home purchase needs careful consideration.

10. Seek Legal advice before signing a Contract

Having your lawyer check any contract before you sign may cost but has the potential to save you time, money and heartache.

Agreement for the sale and purchase of a business

Fri, 18 Mar 2022 00:31:26 GMT

If you are thinking about selling or purchasing a business, an agreement for the sale and purchase of the business assets and goodwill will generally be required.

Prior to entering into an agreement the parties will need to negotiate the terms of the sale carefully, including the purchase price (broken down for the goodwill, tangible assets and stock (if applicable)), the deposit payable, the settlement date, the vendor’s assistance period post settlement date and whether a restraint of trade will apply to the vendor, and if so the terms of that restraint, and to agree on a list of the assets which are to be included in the sale.

Once the general terms have been agreed, there will be additional information that will need to be included in the agreement, such as the vendor turnover, warranty figures, details of the lease (if applicable), and any conditions to the agreement that the parties (usually the purchaser) need to satisfy before the sale can proceed. These conditions to the agreement may include matters such as the purchaser arranging enough finance to complete the purchase, undertaking and being satisfied with a due diligence investigation into the business, approving the lease for the business premises and obtaining the landlord’s consent to the assignment of the lease to the purchaser.

For larger businesses a bespoke agreement may be required to be drafted by a lawyer, however for smaller businesses the form generally used is the agreement produced by the Auckland District Law Society. As every business is different and operates in its own way, even when the standard agreement has been used there will usually need to be additional and specific clauses added. Some examples are as follows:

Provision for employees;

Requirement for continued or new supplier or distribution agreements;
Franchisor approval where the business being sold is a franchise;
Requirement for liquor licence to be obtained if the business sells alcohol;
Ownership of the trading name and intellectual property provisions;
Additional vendor warranties if appropriate; and
Vendor finance provisions if required.

There are several considerations to take into account and it is important that the agreement is drafted so as to accurately represent the transaction and protect the parties where possible. Whether you are a potential vendor or purchaser, you will require legal advice from a lawyer and professional advice from an accountant when entering into an agreement for the sale and purchase of a business, and the commercial and property law team at Willis Legal would be happy to assist you with this.

Introduction to company law

Sun, 13 Feb 2022 00:28:46 GMT

Part 1: Choosing the right business structure

If you are thinking about starting a new business, one important consideration will be how that business is to be structured. This decision will depend on a number of considerations, including:

The amount of control and responsibility you wish to have over the business;
The amount of risk involved with the venture, and therefore how important the extent your personal liability may be;
Tax considerations and implications;
The ability to grow the business; and
Cost and ease of establishment and compliance of the business.

Generally you will need to choose a business structure that will give you the greatest security, flexibility and profit while minimising its tax costs.

The three main business structures used in New Zealand are:

Sole trader;
Partnership; and
Companies.

Sole Trader

A sole trader is an individual who is in business either in his or her own name or under a business name. If you are a sole trader you and your business are considered to be the same legal entity. All income from the business is included in your personal income, and taxed at your individual tax rate.

The advantages of operating as a sole trader are:

No registration is required, which can mean lower administration costs.
You have entire control the business.
The profits go directly to you.
Any tax losses made by the business can be carried forward indefinitely and offset against future income.

The disadvantages of operating as a sole trader are:

You will have unlimited personal liability for all of the debts of the business, so your personal assets will be at risk.
It is difficult to grow the business, for example through outside investment.
It can be difficult to sell the business, and there may be tax liability on the sale.

A sole trader may be the appropriate business structure for a small first off business as it is relatively straight forward and low cost. But if the business is looking to grow, or you want to protect your personal assets, one of the other structures discussed below should be considered.

Partnership

A partnership is a group of people or entities operating in business together. As with a sole trader, no registration is required, and it is not a separate legal entity. Generally the partners formalise their arrangement through a partnership agreement, although this is not legally required.

All the partners are bound by any act carried out by one of the partners acting in the ordinary course of business. The structure is therefore suited to when there is a small number of partners who know and trust each other. The profit of the business is shared out to the partners and each partner taxed on his or her individual income.

If one of the partners leaves the partnership, the partnership is dissolved and the remaining partners will need to enter into a new partnership.

The advantages of operating through a partnership are:

The responsibility, costs and decision making for business are shared between the partners.
Each partner may bring different strengths and skills to the business.
If the partnership makes a loss it can be offset against the partners’ other income.

The disadvantages of operating through a partnership are:

Each partner has unlimited liability, and so their personal assets will be at risk (although it is possible for some partners to achieve limited liability through the use of a limited partnership).
Each partner has joint and several liability – so one partner could end up paying not only their share of the business’s debts, but their partners’, if the other partners were unable to pay their share.
The partners may disagree on certain decisions which could lead to conflict.

Companies

A company is an incorporated entity that has been registered with the New Zealand Companies Office. Unlike a sole trader or a partnership, a company is viewed as a separate legal entity to its shareholders. It owns all the assets and liabilities, whereas a sole trader would own them directly.

A Company has limited liability and so is liable for any debts it owes, rather than the shareholders directly. If the company fails, then the shareholders only lose the value of their shares.

However, if you’re involved in the running of the business as a director, you can be held liable for debts if your conduct is deemed to have been reckless, fraudulent or not in the company’s best interests. Lenders will also often only lend you capital once you’ve signed a personal guarantee over-riding your limited liability status.

This limited liability protection and the transparency of the company registry system (which allows anyone to see who’s involved with a company as a shareholder or director) can give greater confidence in this type of business structure compared with others.

Companies are taxed at the company tax rate (currently 28%) while the profits received from companies by shareholders (usually as a dividend) are taxed as part of that shareholder’s individual income. This means tax will ultimately be paid on company profits at the shareholders’ tax rates, even though the company rate is 28%.

The advantages of a company are:

Easier to attract funding and investment.
More credibility in the marketplace.
Easier to sell the business because it’s a separate entity.
The business can grow and last indefinitely because it isn’t tied to one person.
Shareholders’ liability is usually limited to their share of ownership.
Tax rate is lower than the top personal rate and the trust rate.

The disadvantages of a company are:

Higher levels of regulation compared with sole trader and partnership structures.
Can require larger amounts of investment.
Directors need to carefully understand their responsibilities.
If losses are made, they are retained by the company so they can’t ordinarily be offset against the shareholders’ other income for tax purposes.

Summary

There is a lot to consider when you are venturing into the commercial world, and taking some time at the very start of the process to ensure your business is structured in a way that is most adventurous to your individual circumstances can save later issues arising. We would be happy to discuss with you the various options outlined above in greater detail.

Our next article will look at how to start a company.

Changes affecting landlords and tenants

Fri, 22 Jan 2021 00:22:33 GMT

Did you know there are a few significant changes to the Residential Tenancies Act 1986?

Changes have already come into effect on 12 August 2020, including:

The Residential Tenancies Act will not apply to transitional and emergency housing.
Rent can now only be increased once every 12 months (previously every 6 months).

More changes are to take effect on 11 February 2021, including:

Landlords cannot end a periodic tenancy without cause by providing 90 days’ notice, as they have been able to do in the past.
All fixed-term tenancy agreements will convert to periodic tenancies at the end of the fixed term unless:

The parties agree otherwise
The tenant gives a 28-day notice; or
The landlord gives notice according to the termination grounds for periodic tenancies. Note: The termination notices issued by a landlord will be increasing to either 63 days or 90 days depending on the grounds for the notice.

Tenants can now ask to make changes to the property and landlords must not decline if the change is minor, landlords must respond to a tenant’s request within 21 days.
Rental bidding is prohibited. Rental properties must be advertised with a rental price listed, and landlords cannot invite or encourage tenants to bid on the rental
Tenants can request to install fibre, and landlords must approve if it will be no cost to the landlord, unless specific exemptions apply.
A suppression order can remove names and identifying details from published Tenancy Tribunal decisions.
Requests to assign a tenancy must be considered, landlords cannot decline unreasonably. If a residential tenancy agreement prohibits assignment, it has no effect.
Landlords must provide a tenancy agreement in writing, otherwise will be committing an unlawful act. Landlords will need to retain and provide new types of information to tenants, including any fees to be charged on agreement to assignment, subletting or ending a tenancy. On request, landlords will be obligated to provide the records relating to healthy homes standards.
Enforcement measures are being strengthened. Penalty levels for exemplary damages and fines will increase by between 50-80%.
The Tenancy Tribunal’s jurisdiction for cases and awards will increase from $50,000 to $100,000.

Another change will take effect on 11 August 2021 (or earlier if the Government agrees):

Tenants experiencing family violence will be able to withdraw with 2 days’ notice from a tenancy without financial penalty.

For more information, check out the Tenancy Services Website: https://www.tenancy.govt.nz/law-changes/

What does it mean to be an executor of someone’s will?

Sat, 19 Sep 2020 23:18:56 GMT

Nothing is required of you until the person dies. Then your duties as an executor commence. The main duty is to carry out the terms of the deceased’s Will.
The first thing you will be required to do is to obtain probate for the Will. Probate is the High Court’s authority for you as the executor to deal with the estate. Estates that have a value of less than $15,000.00 do not require a grant of Probate.
The lawyer who is involved with the estate will assist preparing all the necessary court documents.
Once Probate has been granted it is your duty to pay all the deceased’s debts and gather in the assets.
Once assets are realised and debts and testamentary expenses are met the executor can distribute the estate in accordance with the deceased’s wishes.
An executor may distribute an estate six months after Probate has been granted if no claims are made. Executors distributing earlier than six months should be mindful that they could be held personally liable for any claims made against the estate.
If the estate consists of business assets or overseas investments and shares then it may take longer to distribute the estate.
Some Wills provide for a grant of a life interest to someone. If this is the case the estate cannot be wound up until that person dies.
Clearly being an executor is an important position. We here at Willis Legal can assist you through that process and minimise any risk for you. Lawyers’ fees for assisting in the administration of an estate are paid for by the estate.

Working as a graduate at Willis Legal

Thu, 25 Jul 2019 23:13:32 GMT

Working as a graduate at one of the leading law firms in Hawkes Bay has been the best start to my legal career. The support, diversity and encouragement which the team at Willis Legal provide, has meant that my first six months have flown by and I have loved every aspect of my first job in law.

Working and undergoing my professional studies was a lot to take on, but being able to apply what I was learning daily to my assessments was a huge benefit. Willis Legal supported me throughout the duration of the course and ensured that my workload never got too much for me to handle.

The main area where I have been working in is residential conveyancing and I have been able to take clients through the process from start to finish of a transaction. I have particularly enjoyed working with first home buyers and love giving clients a telephone call to confirm that their settlement has been completed. The process for first home buyers is unfamiliar territory, so making sure that I am available to answer any questions which they may have is important. Another aspect of conveyancing which I enjoy is that no two files are ever the same and that sometimes issues pop up at the last minute so that time is of the essence and solutions need to be found quickly so that we are in a position to settle.

Willis Legal has also encouraged me outside of work especially with my netball. When I was asked to coach a local secondary netball team, which meant I needed to leave work early once a week, they were enthusiastic of the idea. I appreciate that I can work and also give back to the local community through a sport which I am passionate about.

Overall, coming back to Hawkes Bay and being a graduate in a firm like Willis Legal was the best decision I could have made. The support not only from inside work but in the legal profession across Hawkes Bay has been of huge benefit to someone like me starting out, and I am looking forward to growing with the firm.

Retirement Villages

Sat, 13 Jul 2019 23:01:56 GMT

The growth of the Retirement Village industry in New Zealand is increasing every year. There are currently well over 330 registered retirement villages in New Zealand.

10 Key Questions Intending Residents Need to Ask:

Why do you want to move and what enquiries have you made of the Village?
Is the Village registered with the Retirement Villages Act 2003?
Do you understand the ownership and management structure of the Village?
What security arrangements exist and the range of services on offer at the
Village?
What are the entry fees and exit costs on sale? What fees do you have to
pay upon vacating the Village?
Can the Village increase service charges?
Does the Village have a statutory supervisor, and if so, do you know the rules
and duties of a statutory supervisor?
Do you know the rules for visitors, pets, car parking and having people to stay
with you?
Can you be moved from one unit to another in the Village?
Do you understand about damage or destruction as a result of earthquakes?

It is only Lawyers who can sign and explain to an intending resident the terms and effect of the Occupation Right Agreement.

If you are thinking about entering a retirement village, pleased call us.

We have worked for a number of clients who are now residents in a Retirement Village.

Anti-money laundering (Aml) legislation

Mon, 02 Jul 2018 22:59:38 GMT

Why we need to ask you for information

New Zealand has passed a law called the Anti-Money Laundering and Countering Financing of Terrorism Act 2009 (“the AML/CFT Act” for short). The purpose of the law reflects New Zealand’s commitment to the international initiative to counter the impact that criminal activity has on people and economies within the global community.

From 1 July 2018 lawyers must comply with the requirements of the AML/CFT Act and do a number of things to help combat money laundering and terrorist financing. One of those things is called “customer due diligence” where lawyers must obtain and verify information from clients about a range of things.

Customer Due Diligence

Customer due diligence requires a law firm to undertake certain background checks before providing services to clients. In order to comply with the AML/CFT law we need to obtain and verify certain information, including your full name; your date of birth; and your address.

The documents we require to confirm your name and date of birth include:

any of a New Zealand Passport; a New Zealand Firearms Licence; or an Overseas Passport (provided it contains the requisite information); OR
a New Zealand Driver’s Licence AND a non-photographic identification issued from an independent source (e.g. full birth certificate; bank statement; IRD statement; Super Gold Card); OR
an 18+ Card AND a full birth certificate.

The type of documents we require to confirm your address include rates bills, utilities bills, bank statements, or IRD statements.

Other information

If you are seeing us about a company or trust business, we will need information about the company or trust including the people associated with it (such as directors, shareholders, trustees and beneficiaries).

We may also need to ask you for further information (including information confirming the source of funds for a transaction or source of wealth for the company or trust).

If you cannot provide the required information

If we are not able to obtain the required information from you, the law prohibits us from acting for you. We need to ask for the information even if you have been a client of ours for a long time.

Please contact the lawyer who will be undertaking your work, if you have any queries or concerns.

Attorneys’ duties under enduring powers of attorney

Wed, 14 Dec 2016 23:52:33 GMT

A recent judgment issued by the Court of Appeal has clarified the duties of an attorney under an Enduring Power of Attorney (“EPOA”) in relation to Property, particularly in circumstances when the donor (i.e. the person giving the power to the attorney), is mentally capable.
The case is Vernon v Public Trust [2016] NZCA 388. The essential facts are these:

Kenneth Vernon appointed his son Ashley Vernon his attorney under an EPOA in relation to Property.
Kenneth was aged 86 in March 2006, when his wife Naomi died. Following his wife’s death, Kenneth lived with Ashley and his wife, Beverley (“the Vernons”) until 2008, when he went into a rest home.
When Kenneth went to live with the Vernons, his assets amounted to about $329,000.00.When Kenneth moved into the rest home, his assets had been reduced to $11,000.00. During that time, Ashley had controlled Kenneth’s bank accounts using the EPOA.
Kenneth’s Will divided the balance of his Estate equally between Ashley and Kenneth’s grandson, Dante (being the only child of Kenneth’s other son, Chris, who had already died).
Following Kenneth’s death in 2011, the Public Trust was appointed as replacement administrator of his Will. In 2014, the Public Trust issued proceedings in the High Court against the Vernons to recover the funds withdrawn from Kenneth’s account, alleging that Ashley had misapplied them for the joint benefit of him and Beverley. The Vernons denied liability and the claim went to trial.
In the High Court, Justice Kós found that Ashley had exercised undue influence over Kenneth in obtaining Kenneth’s consent to the majority of the bank transactions, and found in the alternative that the transactions constituted a breach of Ashley’s fiduciary duty owed to Kenneth and on the grounds on unconscionability.
The Vernons appealed to the Court of Appeal.
The Court of Appeal decided that:
The High Court decision could not be sustained on the grounds of “undue influence” because, once the Judge found that the transactions did not occur with Kenneth’s consent, it could not be said that the consent was obtained by “undue influence”.
However, the Court of Appeal sustained Justice Kós’ alternative finding that Ashley’s actions constituted a breach of fiduciary duty and were unconscionable. The Court rejected the Vernon’s argument that the Protection of Personal and Property Rights Act 1988 was a code and that the fiduciary duties could not be implied.
However, the Court of Appeal rejected that submission where the donor is not mentally incapable.Under an EPOA the donor appoints the donee to be the donor’s agent or attorney. Although, an EPOA is created by the Act which prescribes certain powers, that does not exclude the imposition of equitable obligations.Equity imposes enforceable duties on an agent. Fiduciary obligations are a necessary incident of the relationship of principal and agent.
As a result, the Court of Appeal found that Ashley owed Kenneth fiduciary duties whenever he exercising his powers under the EPOA, and that in these circumstances, Ashley had used his powers for improper purposes (to financially benefit himself and his wife), and this was directly contrary to Kenneth’s property interests.
As a result of this decision, it is clear that the duties owed by attorneys to donors under an EPOA are more than those expressly stated in the Act and/or the power itself, but are, much like trustees, fiduciary duties which include the duty to act openly and fairly, to exercise reasonable care in managing the financial affairs, to keep personal and fiduciary property separate and to avoid conflicts of interest.