TRUSTS & ESTATE PLANNING

Trusts

Trust law is an ever-changing area. Recent case law has made it easier for spouses or partners to get access to trust property in a relationship break up. If you currently have a trust, we can help you to review the trust documents.

Despite the recent challenges, trusts remain a popular asset protection tool and remain appropriate in many circumstances. We can talk you through the implications of putting your property into a trust and discuss if creation of a trust is right for you.  

Wills

It is important to make sure you have a current and valid will.  You should consider matters such as any specific bequests you would like to make, testamentary guardians for your children, appointment of trustees to stand in your place if you have a family trust, and who should receive the residue of your estate. 

If you do not have a will, your estate will be divided in accordance with the Administration Act 1969.   This varies depending on your circumstances, but is unlikely to be as you intend and will make the estate administration process significantly more expensive and time consuming, as your family will need to make an application for Letters of Administration. 

If you do have a will, it is important to regularly review its terms, to ensure that it remains appropriate for your current situation. Changes in relationship circumstances may also change the effect of your will. 

We would be happy to review your current arrangements or to create a will for you if you do not have one. 

Enduring Powers of Attorney

An enduring power of attorney is a legal document in which a person (the ‘donor’) appoints another person (the ‘attorney’) to manage their affairs and make decisions on their behalf.  There are two types: property and personal care and welfare. 

Powers of attorney in respect of property can either take effect immediately or if the donor becomes mentally incapable, whereas powers of attorney for personal care and welfare will only take effect if the donor becomes mentally incapable.

These are important documents which confer significant responsibility on the attorney.  For the protection of the donor, there are strict statutory provisions in the Protection of Personal and Property Rights Act 1988 which dictate how an enduring power is created, used, and terminated. 

Choosing an attorney is a serious decision.  It is important to choose someone who you feel understands you and will make the right decisions for you.  The right person may change over time, so whenever you get your Will written or updated, we recommend that you also consider reviewing your enduring powers of attorney.   

Relationship Property 

If you are entering a new relationship, already in one, or are separating, there will be implications for your estate or trust. 

Recent changes in trust case law have made it easier for a partner to challenge their spouse's trust. These changes have made it increasingly important that your trust documents are carefully prepared and reviewed. Our team is fully up to date with trust law developments.

There are various claims that a spouse or partner could make against an estate, including through the Family Protection Act 1955, the Property (Relationships) Act 1976 and the Law Reform (Testamentary Promises) Act 1949.  We can advise you on how to mitigate the risk of a claim, or to make a claim if required. 

Litigation & Disputes

There are many ways an estate may be challenged, including where a will-maker failed to provide for someone to whom they had a ‘moral duty’ (Family Protection Act 1955), where a testator promised to provide for someone in their Will in exchange for goods or services but failed to do so (Law Reform (Testamentary Promises) Act 1949), or for fraud, undue influence or lack of testamentary capacity at the time the Will was made.  A spouse or partner may also make a claim under the Property (Relationships) Act 1976.

We can also assist you to resolve a trust dispute, whether you are defending a claim or seeking to make one. This may include seeking provision of information from trustees or challenging trustee decisions, making a relationship property claim or escalating the dispute if required.

Contact our experienced trust, estate and dispute resolution lawyers for advice today at trusts.estates@becker.co.nz