Successful Lawyers, Riccarton, Christchurch | Weston Ward & Lascelles

Living Apart Together (LAT): Does the Property (Relationships) Act Apply to You?

Fri, 10 Apr 2026 02:06:02 GMT

In the modern Christchurch dating landscape, a new trend is emerging: "Living Apart Together," or LAT. These are couples who are in a committed, long-term relationship but choose to maintain their own separate residences. For many—especially those who have already been through a separation or have children from previous relationships—this arrangement offers the perfect balance of companionship and independence.

The common assumption among LAT couples is that by keeping their names off each other's titles and living under separate roofs, their assets remain 100% protected. They believe that because they haven't "moved in," the Property (Relationships) Act 1976 (the PRA) cannot touch their home, their KiwiSaver, or their business.

However, at Weston Ward & Lascelles , we are seeing an increasing number of cases where this assumption is proven wrong. In New Zealand, the law is far more nuanced than simply looking at a physical address. Under the PRA, you can be deemed to be in a "de facto relationship" even if you have never shared a bed under the same roof full-time.

Understanding the "De Facto" Trigger

To understand the risk, we must first understand how the law defines a relationship. The Property (Relationships) Act applies to married couples, civil union partners, and—most crucially for LAT couples—de facto partners who have been together for three years or more.

Under Section 2D of the Act, a de facto relationship exists between two people who are both aged 18 or older, who live together as a couple, and who are not married or in a civil union.

The "Heavyweight" legal question that often arises in Court is: What does "live together as a couple" actually mean?

The New Zealand Courts have made it clear that "living together" does not require 24/7 cohabitation. Instead, the Court looks at the "nature of the relationship" as a whole. You can be "living together as a couple" in a legal sense while maintaining two separate physical households.

The "Six Pillars" of a Relationship: What the Court Looks For

When a relationship ends and one partner claims a share of the other’s assets, the Court will evaluate whether a de facto relationship existed by looking at several factors. These include:

The Duration of the Relationship: Usually, the "three-year rule" is the threshold for equal sharing of relationship property.
The Nature and Extent of Common Residence: While you may have separate homes, does one partner spend four nights a week at the other's? Do you have your own drawer, a toothbrush, or a key?
The Degree of Financial Dependence or Interdependence: Do you share a Netflix account? Do you pay for groceries together? Have you provided financial support or acted as a guarantor for the other?
The Ownership, Use, and Acquisition of Property: Even if a house is in one name, has the other partner helped with renovations, gardening, or mortgage payments?
A Mutual Commitment to a Shared Life: Do you holiday together? Do you attend family events as a couple?
The Reputation and Public Aspects of the Relationship: How do your friends, family, and colleagues see you? Do you post as a couple on social media?

If the "weight" of these factors suggests you are a couple, the law may treat you as de facto—meaning the 50/50 split rules could apply to your assets, regardless of whose name is on the deed.

The Hidden Danger for Christchurch Homeowners

For many people in NZ, the family home is the most significant asset. In a traditional relationship, the "family home" is easily identified. In a LAT relationship, the lines get blurred.

If the Court determines you are in a de facto relationship, one partner may be able to claim a 50% interest in the other partner’s home, even if they never officially moved in. This often happens when the couple spends the majority of their "couple time" at one specific residence, effectively turning that property into the "family home" in the eyes of the law.

For business owners and those with significant KiwiSaver balances, the risks are equally high. Once the three-year threshold is crossed, the increase in the value of your business or your retirement fund during the relationship may be considered relationship property.

The "Heavyweight" Solution: Contracting Out Agreements

At Weston Ward & Lascelles, we believe in Providing Certainty. You should be able to enjoy your relationship without the looming fear of a future legal battle over your assets.

The only way to ensure that "Living Apart Together" actually protects your property is through a Contracting Out Agreement (commonly known as a Prenup).

A Contracting Out Agreement allows you and your partner to decide exactly how your property will be divided if the relationship ends. You can specify that your home, your business, and your investments remain "separate property," regardless of how long the relationship lasts or how much time you spend at each other's houses.

Why a "DIY" agreement won't work: For a Contracting Out Agreement to be legally binding in New Zealand, it must meet strict criteria. Some of the rules are:

It must be in writing and signed by both parties.
Each party must receive independent legal advice from a specialized lawyer.
The signature of each party must be witnessed by a lawyer who certifies that they explained the effect and implications of the agreement.

Without these steps, the agreement is effectively a piece of paper that a Court can easily set aside.

Why Choose Weston Ward & Lascelles?

With a 140-year legacy in Christchurch, WWL is uniquely positioned to navigate the complexities of modern relationship law. We combine "Heavyweight Advocacy" with a common-sense approach that respects the unique nature of LAT arrangements.

Our Family Law team is led by specialised practitioners who understand that every relationship is different.

Kristy O’Connor , a director with over 40 years of experience, is a leading voice in Relationship Property and Family Law disputes. She provides the expert guidance required to ensure that even the most complex separations are handled with certainty and grit. Whether you are at the beginning of a LAT relationship and want to protect your assets, or you are facing a claim from a former partner, Kristy and the team offer the sophisticated advocacy you need.

Certainty for Your Future

Living Apart Together is a wonderful way to build a life with someone while maintaining your own space. However, don't let the physical distance between your front doors give you a false sense of security. The law in New Zealand is designed to protect partners, and without the right legal safeguards, your independence could come at a high financial cost.

If you are in a committed relationship and want to ensure your assets are protected, the time to act is now—before you hit that critical three-year mark.

From our established legal chambers in Riccarton, Weston Ward & Lascelles remains your heavyweight advocate.

We provide the frank, practical advice you need to move forward with confidence.

Contact Us Today

Ready to provide certainty for your assets? Contact our Christchurch Family Law team today to discuss a Contracting Out Agreement tailored to your lifestyle.

Providing Certainty Since 1883: The 140-Year Legacy of Weston Ward & Lascelles

Fri, 20 Mar 2026 00:11:49 GMT

*An artist’s impression of our founding era in 1883 Christchurch

In an era where "digital-first" firms often lack physical roots, longevity remains the ultimate mark of legal quality. Since 1883, Weston Ward & Lascelles (WWL) has stood as a pillar of the Christchurch community. While our offices have transitioned to a modern, easily accessed Riccarton office , our DNA remains firmly rooted in the values of "Heavyweight Advocacy" and "Providing Certainty" established over a century ago.

To understand the WWL of 2026, one must look back to the Victorian era of Christchurch, when the firm’s foundations were laid by some of New Zealand’s most distinguished legal and civic minds.

The Vision of Thomas Shailer Weston (1883–1902)

The story of the firm began in 1883. Thomas Shailer Weston (1837–1912) was already a formidable figure in New Zealand when he opened his practice in Christchurch. Having served as a District Judge in Napier and as a Member of Parliament, Weston brought a "Heavyweight" reputation to the local bar from day one.

His practice wasn't just about paperwork; it was about public service. As a politician and a judge, Thomas understood that the law was the framework upon which a growing city like Christchurch was built. His commitment to the legal profession was a family affair, with his brother Henry and his son George eventually joining the ranks, ensuring that the "Weston" name became synonymous with legal integrity in the Canterbury region. By 1902, Thomas’s expertise was so widely recognised that he was moved to New Plymouth to serve as Crown Prosecutor, leaving a thriving legacy behind in Christchurch.

Resilience Through World War I: The George Weston Era

The firm of T S Weston & Son continued under the care of his son, George Thorngate Weston (1876–1957). George oversaw the firm’s transition into the 20th century, a time of immense growth and equally immense challenge for New Zealand.

The greatest test of the firm’s resilience came in 1914. When World War I broke out, George answered the call to service, serving overseas from 1916 until 1919. During his absence, the firm did not falter. It was kept alive and thriving by Robert Beecher Ward (1880–1929), who had joined in 1905 as a solicitor manager.

This period established a core WWL value that we still hold today: Continuity. When George returned from the front in 1919, the bond between the two men resulted in a formal partnership, and the name of the firm changed to Weston & Ward .

The "Colonel" and the Final Name: 1921–1945

The final piece of the brand’s namesake puzzle arrived in 1921. William Ross Lascelles (1895–1985) had served as an officer alongside George Weston in France. Their shared experiences on the battlefield forged a level of trust that translated perfectly into the boardroom.

With Ross’s admission to the partnership, the name Weston Ward & Lascelles was born—a name that has remained unchanged for over 100 years. Ross Lascelles’ story is one of ultimate leadership. He returned to the Army during World War II, serving as a Colonel and a Battalion Commander in the Canterbury Regiment. This history of high-stakes leadership is reflected in our modern approach to advocacy: strategic, disciplined, and unwavering.

A Century of Legal "Successes"

The achievements of these three named ancestors set a standard of distinguished service that has continued for 140 years. In the history of the firm, many distinguished lawyers have worked under our banner, with a good number going on to serve as Judges and King’s Counsel (KC).

One of the most remarkable statistics in the New Zealand legal profession is the combined practice span of Thomas and his son George—together, they covered a span of 96 years of legal practice. This intergenerational knowledge is why we are uniquely positioned to handle complex Trusts and Estates today; we aren't just practising the law, we helped shape the history of asset protection in Canterbury.

The Modern Era: Leading with Certainty in Riccarton

While we honour our history, WWL is a firm that looks forward. From navigating the complexities of the 2011 Earthquakes to the digital transformation of the 2020s, we have consistently adapted to meet the needs of "Everyday People."

Our move to 1/10 Leslie Hills Drive, Riccarton marked the beginning of a new chapter. By moving out of the CBD, we have doubed down on our commitment to accessibility. We understand that our clients lead busy lives, and providing easy parking and a central suburban location is part of our "no-nonsense" approach to legal service.

Today, our directors— Rosa Bellolio Roth, David Houston, and Kristy O'Connor —lead a team of 23 professionals who embody the same spirit as our founders.

Rosa Bellolio Roth continues the tradition of heavyweight advocacy, specifically within Family Law and international legal matters.

David Houston , who became a partner in 1995, heads our Property and Business teams, bringing that essential "common-sense" perspective to commercial transactions.

Kristy O'Connor with over 40 years experience, provides the expert guidance required for Relationship Property and complex Family Law disputes, ensuring that even the most difficult separations are handled with certainty.

Why 140 Years of History Matters to You

In 2026, when you search for "Lawyers Christchurch," you are faced with dozens of options. So, why choose a firm with a 140-year history?

Tested Integrity: We have navigated every economic shift and social change in Canterbury's history. We aren't a "start-up"; we are an institution.

Specialist Knowledge: Our history in Elder Law and Succession Planning means we have seen how Wills and Trusts play out over decades, not just years.

Heavyweight Results: You don't survive for 140 years without being exceptional at what you do. Our recent successes—including securing $1M+ settlements for clients who were told they were entitled to nothing—prove that the "Weston, Ward, and Lascelles" spirit of advocacy is stronger than ever.

Certainty for the Next Generation

The commitment to service and quality continues. As we look toward the next 140 years, our mission remains unchanged: to provide frank, practical legal advice that provides certainty for our clients.

From Thomas Shailer Weston’s first office to our Riccarton legal office, Weston Ward & Lascelles remains your heavyweight advocate in Christchurch.

From Suspension to Solution: Navigating Limited Licences in Christchurch

Thu, 19 Feb 2026 21:29:54 GMT

In Christchurch and the wider Canterbury region, a driver licence is often more than a convenience—it is a lifeline. Our modern lifestyles are built upon the ability to navigate from A to B with efficiency. Whether it is commuting from satellite towns like Rolleston or Rangiora, visiting family in rural Canterbury, transporting children to school, or simply managing the weekly shop, the car is the primary tool of independence for most Kiwis.

We often take the right to drive for granted until the moment it is revoked. The sudden loss of a licence due to disqualification or suspension creates an immediate and often overwhelming vacuum. However, the law provides a pathway for those who find yourself in this position: the Limited Licence (often referred to as a ‘Work Licence’).

At Weston Ward & Lascelles , we have provided legal advocacy to the Christchurch community since 1883. We understand that a mistake behind the wheel should not necessarily result in the collapse of your career or the destabilisation of your family. Our approach is to tackle the situation head-on, providing the certainty and practical solutions required to get you back on the road legally.

Understanding the Mechanics of Licence Loss

There are two primary pathways through which a New Zealander loses their right to drive under the Land Transport Act 1998. Understanding which path you are on is the first step toward a solution.

1. The Demerit Point Suspension

If you accumulate 100 or more demerit points within a two-year period, your licence is suspended. This is an administrative action triggered by the New Zealand Transport Agency (Waka Kotahi). You will receive a written notice, and your licence will typically be suspended for a mandatory period of three months. In this scenario, the suspension is not decided by a Judge, but by the accumulated history of traffic infringements.

It is important to note that you cannot apply for a limited licence until the suspension actually begins. Once you receive the notice, the "clock" starts on your ability to seek a legal remedy to keep you on the road for work purposes.

2. Court-Ordered Disqualification

The second pathway is through a conviction for a driving offence in a court of law. This usually involves more serious matters such as sustained loss of traction, careless driving, or driving with excess breath/blood alcohol. In these instances, a Judge orders the disqualification as part of a criminal sentence.

Disqualification periods vary significantly depending on the severity of the offence. For a first or second drink-driving conviction, the minimum disqualification is typically six months. For habitual offenders or more serious categories of reckless driving, you may face years away from the wheel, hefty fines, or even imprisonment.

What Exactly is a Limited Licence?

A limited licence is not a "get out of jail free" card. It is a highly restrictive legal instrument authorised by the District Court that allows you to drive under very specific, narrow conditions. The "limited" nature of the licence refers to the specific vehicles you may drive, the specific hours you may be on the road, the geographical areas you are permitted to enter, and the specific purpose of your travel.

Essentially, a limited licence is designed to mitigate the collateral damage of a disqualification without removing the punitive nature of the sentence. It ensures that while you are being punished for a driving error, your employer, your dependents, and your livelihood are not unfairly penalised.

The Threshold for Success: Extreme vs. Undue Hardship

To be granted a limited licence, you must prove to the Court that the disqualification causes a level of hardship that goes beyond mere "inconvenience." The law sets two distinct bars for this:

1. Extreme Hardship (To the Applicant)

This is a high bar. To prove extreme hardship, you must demonstrate that losing your licence will result in a catastrophic outcome for you personally—most commonly the total loss of your employment or your primary source of income.

In a Christchurch context, a Judge will look at whether alternative transport is viable. For example, if you live and work within the central city where bus routes are frequent, proving extreme hardship is difficult. However, if you are a tradesperson required to transport heavy tools to various construction sites across Pegasus, Hornby, and Lyttelton, the lack of a licence may make your job impossible to perform. This is where we focus on the "practical reality" of your situation.

2. Undue Hardship (To Another Person)

This relates to the burden placed on others due to your inability to drive. This is frequently used when an employer relies on an employee to drive as a core part of their business operations. If your disqualification means your employer has to hire a second person just to drive you around, or if a small business would have to cease operations because its only driver is off the road, this may constitute "undue hardship" on the employer. It also applies to family members, such as a spouse who is unable to drive and relies on you for essential medical appointments or the care of a disabled dependent.

The Application Process: How We Secure Your Order

Applying for a limited licence is a rigorous legal process. It is not as simple as filling out a form at a registry. It requires a formal application to the District Court and, crucially, a negotiation with the New Zealand Police.

At Weston Ward & Lascelles, our practitioners manage the entire lifecycle of the application. The process typically follows these steps:

The Questionnaire: We provide you with a comprehensive questionnaire to collate the necessary evidence. We need to know your full driving history, any outstanding fines, and the precise details of your work or caregiving requirements.

Drafting the Documents: We draft the formal Application, the draft Court Order, and the supporting Affidavits. An Affidavit is a written statement confirmed by oath or affirmation for use as evidence in court. It must be precise; any inaccuracies can lead to the application being declined.

Police Liaison: Before the matter goes before a Judge, we liaise with the Police Prosecution Service. We aim to reach an agreement on the terms of the licence (the hours, areas, and purposes). If the Police consent to the draft order, the process in Court is significantly smoother.

The Court Hearing: We represent you at the District Court hearing. We present the case for hardship to the Judge and advocate for the terms you need to keep your life and business running.

NZTA Implementation: Once the Judge signs the order, you must take that order to an AA or VTNZ station to apply for the physical limited licence card. You cannot drive until that physical card is in your possession.

Critical Restrictions and Compliance

It is vital to understand that a limited licence comes with strict "logs" and conditions. If you are caught driving outside of your approved hours or outside of your approved geographical area, you are effectively driving while disqualified.

This is a serious offence that usually results in the immediate cancellation of your limited licence, a further period of disqualification, and potentially more severe criminal penalties. For example, if your licence allows you to drive for work purposes between 7:00 am and 6:00 pm, you cannot use the car to pick up milk at 8:00 pm or to drive to a friend's house on the weekend. The law expects you to endure the "inconvenience" of the punishment outside of the strictly approved hardship hours.

Why Choose Weston Ward & Lascelles?

Since 1883, Weston Ward & Lascelles has been built on a foundation of "distinguished service and quality." We do not offer generic legal forms; we provide heavyweight advocacy tailored to the Christchurch environment.

Our team is known for being frank and practical. We will tell you clearly whether you meet the hardship thresholds and what the most likely outcome of your application will be. We understand that this is a stressful time, and we offer confidential, non-judgemental advice to help you find a solution to your suspension.

If your livelihood is at risk due to a licence disqualification, do not leave your future to chance. Tackle the situation head-on with a firm that has stood by Canterbury for over 140 years.

To discuss your limited licence application, contact Ryan O’Connor or Alison Hill today .

Contact: Ryan O’Connor / Alison Hill
Phone: 03 379 1740
Email: enquiry@wwl.co.nz
Address: 1/10 Leslie Hills Drive, Riccarton, Christchurch 8011

Water Cremation & Eco Burials: Are Your Funeral Wishes Legally Binding?

Sun, 08 Feb 2026 21:32:45 GMT

When preparing a Will, many New Zealanders include specific wishes about what should happen to their body after death. While these usually relate to traditional burial or cremation, we are seeing a significant shift towards more personal, environmentally conscious requests.

From "Water Cremation" to eco-burials, the options for saying goodbye are changing. But before you update your Will, it is crucial to understand: Are these wishes actually legally binding?

The Rise of "Eco-Funerals" in New Zealand

Over time, funeral wishes have evolved from simple instructions into reflections of identity, values, and a sense of place.

In recent years, we have seen a gradual shift towards practices perceived as simpler or more sustainable. Common examples in Canterbury include:

Eco-burials: Using biodegradable caskets in designated natural cemeteries.
Medical Donation: Donating the body to medical science (often followed by cremation).
Memorial Trees: Returning ashes to nature to support new growth.

What is Water Cremation? (Alkaline Hydrolysis)

One option attracting increasing attention is alkaline hydrolysis , commonly known as "water cremation."

This process uses water, heat, and an alkaline solution to accelerate natural decomposition. It leaves behind bone material that is returned to the family, similar to the ashes from a traditional flame cremation. It is widely promoted as a gentle, environmentally sustainable alternative that produces significantly fewer carbon emissions.

Now Available in Christchurch

As of June 2025, water cremation is officially available in New Zealand. The first facility has opened right here in Christchurch , operated by Water Cremation Aotearoa in partnership with Bell, Lamb & Trotter .

While this is a significant development for the city, availability is still limited. Practical or regulatory issues may still arise as the industry adapts.

For this reason, if you want to choose water cremation, your Will should frame it as a preference , ideally accompanied by a clear "Plan B" (such as standard cremation) if the service is unavailable at the time.

The Legal Reality: Are Funeral Wishes Binding?

This is the most common question we get from clients updating their Wills.

In New Zealand, burial and cremation wishes expressed in a Will are generally not legally binding in the same way as gifts of property or the appointment of guardians.

The Role of the Executor Your Executor is the person legally responsible for the disposal of the body. While they are expected to take your wishes into account, they are not required to follow them strictly if doing so would be:

Unlawful
Impractical
Unreasonable
Financially impossible

Importantly, an executor is not personally liable simply because a specific wish cannot be carried out. These clauses are best understood as "Expressions of Guidance" rather than enforceable contracts.

Why Flexibility Matters

The importance of this legal flexibility was clearly illustrated during the COVID-19 restrictions, when traditional funerals were temporarily prohibited. An executor faced with a strictly binding direction would have been placed in an impossible position—forced to choose between breaking the law or breaching the Will.

Similar issues arise with very specific requests, such as scattering ashes in overseas locations that may no longer allow it, or requesting methods of disposition that aren't yet available in your region.

Best Practice: How to Draft Your Will

If you have strong feelings about water cremation or eco-burials, you should absolutely record them. However, to ensure your Will remains workable, we recommend:

State it clearly: "It is my wish/preference that..."
Allow flexibility: Give your executor the power to make necessary decisions if circumstances change.
Include a fallback: "If water cremation is not available, I direct that..."

Final Thoughts

Burial and cremation wishes are deeply personal. Recording them in your Will is the best way to ensure your family understands your values. However, understanding the legal effect of those wishes ensures your Will remains respectful to both your intentions and your executor’s difficult role.

Do you need to update your Will to include water cremation or specific funeral instructions? Contact the Estates Team at Weston Ward & Lascelles today.

The 2026 Legal Audit: Your Ultimate Guide to Getting Your Affairs in Order for the New Year

Thu, 15 Jan 2026 23:39:32 GMT

As we hit the middle of January, after a well deserved break, Christchurch starts to wind back up again for the up coming year.

We naturally start thinking about our New Year’s resolutions. Usually, these look like: “Join the gym,” “Drink less coffee,” or “Finally paint the spare room.”

But there is a different kind of resolution—one that won’t give you abs, but will give you something arguably more valuable: Peace of mind.

We are talking about your Legal Life Admin.

At Weston Ward & Lascelles, we see it every January. The "New Year Panic." People realise that another year has passed where they didn’t update their Will, didn’t sign that Contracting Out Agreement, or didn’t check if their Family Trust is actually compliant with the new laws.

2026 is the year to stop procrastinating.

This isn’t just about ticking boxes; it’s about designing a safety net for your future self. Whether you are a business owner, a parent, a retiree, or a first-home buyer, your legal needs have likely evolved since you last checked them.

In this guide:

1. The Foundation: Wills & Estate Planning

If you take only one thing away from this article, let it be this: If you have assets, or you have children, you need a current Will .

It is a common misconception that Wills are only for the elderly. In reality, a Will is a document for the living. It tells the people you love exactly what to do when you aren’t there to guide them.

Why "I don't have much" is a dangerous mindset

Many Cantabrians think, “I don’t own a mansion, so I don’t need a Will.” But do you have KiwiSaver? Do you have a car? Do you have debt? Do you have a blended family?

If you die "Intestate" (without a Will), the Administration Act 1969 kicks in. This is a rigid, one-size-fits-all formula from over 50 years ago. It decides who gets your money, and it rarely matches what modern families want.

The Blended Family Trap: If you have a new partner and children from a previous relationship, dying without a Will can be a disaster. The law might prioritise your new partner over your children, unintentionally disinheriting them.
The KiwiSaver Lock: KiwiSaver balance over $40,000 (new threshold for Probate)? If you die without a Will, your family cannot just access it. They have to go to the High Court to get "Letters of Administration." This takes months and costs thousands in legal fees—money that your family might need urgently for a funeral or mortgage payments.

The 2026 Will Checklist

If you already have a Will, don't pat yourself on the back just yet. Pull it out of the drawer. Does it survive the "Three D's" test?

Dates: Was it written more than 5 years ago? Relationships change. Assets change. Laws change.
Deaths: Is your Executor still alive? Are they still capable? We often see Wills appointing an executor who is now in their 80s and suffering from dementia. You need a backup plan.
Dependants: Did you appoint a Testamentary Guardian for your minor children? If you pass away, who physically cares for your kids? If you don’t name them in your Will, the Family Court decides.

Your Resolution: Locate your Will. Read it. If it references a partner you broke up with in 2019, or an asset you sold in 2022, contact our team immediately.

2. The Safety Net: Enduring Powers of Attorney (EPOA)

A Will protects your family if you die. Enduring Powers of Attorney (EPOA) protect you if you live—but lose the capacity to make decisions.

The "It won't happen to me" myth

We tend to associate EPOAs with Alzheimer’s and old age. But at Weston Ward & Lascelles, we help clients of all ages.

What if you have a car accident on the way to Akaroa?
What if you suffer a stroke at 45?
What if you are stuck overseas and need someone to sign documents for you?

If you lose mental capacity (even temporarily due to a coma or head injury) and you do not have an EPOA, your family is stuck. They cannot access your bank accounts. They cannot pay your mortgage. They cannot sell your house to pay for your care.

Their only option is to apply to the Family Court for a "Welfare Guardian" and "Property Manager" order. This is public, expensive, stressful, and slow.

The two documents you need

For 2026, ensure you have both types of EPOA in place:

Property: This covers your money and assets. You can activate this immediately (so your spouse can sign for you while you are mentally capable but busy) or only if you lose capacity.
Personal Care & Welfare: This covers your health, where you live, and medical treatments. It only activates if a doctor certifies you cannot decide for yourself.

Your Resolution: Ask yourself, "If I couldn't speak for myself tomorrow, who do I trust to speak for me?" If that person isn't legally appointed, you need an EPOA.

3. The Asset Shield: Family Trusts

Ah, the Family Trust . For decades, this was the classic Kiwi way to protect the family home. But the landscape has shifted dramatically.

Since the introduction of the Trusts Act 2019 and recent tax rate changes, Trusts are under the microscope. 2026 is the year to decide: Review it or Remove it.

The Compliance Burden

Being a Trustee is no longer a symbolic role. It is a legal job. The Act requires you to:

Hold mandatory documents (Deed, variations, accounts).
Keep beneficiaries informed (Basic Trust Information must be provided to beneficiaries—you can't keep secrets anymore).
Invest prudently.

If you have a "sleeping trust" that you haven't looked at in 10 years, you are likely in breach of the Act. This exposes you personally to being sued by beneficiaries.

The "Winding Up" Trend

We are seeing a massive wave of Cantabrians winding up (closing) their Family Trusts . Why?

Cost vs. Benefit: The cost of annual accounting, legal compliance, and tax filing often outweighs the benefits for a simple family home.
Tax Rates: With the Trustee tax rate now aligned with the top personal rate (39%), the tax advantages are gone for many people.

However, Trusts are still incredibly powerful for:

Asset Protection: Protecting against creditors if you own a business.
Relationship Property: Protecting assets for your children against future partners.
Vulnerable Children: Managing money for a child who cannot manage it themselves.

Your Resolution: Book a Trust Review . We will sit down with you and do a cost-benefit analysis. Does the Trust still serve a purpose? If yes, let's make it compliant. If no, let's wind it up properly to stop the fees.

4. The Relationship Reality Check

January is statistically the busiest month for Family Lawyers. The stress of Christmas, the financial pressure of the holidays, and the forced proximity often push rocky relationships to the breaking point.

But " Relationship Property " isn't just about breakups. It's about clarity.

Moving in together in 2026?

If you are in a de facto relationship (living together for 3 years), the law treats you largely the same as a married couple. This means your partner could have a claim to half your assets—including the house you owned before you met them.

The Fix: A Contracting Out Agreement (commonly called a Prenup). This allows you to ring-fence your pre-relationship assets (like your house or KiwiSaver) so they remain yours, no matter what happens. It’s not unromantic; it’s practical. It removes the unspoken anxiety about money from the relationship.

Separating in 2026?

If you decide to part ways, do not rely on a handshake deal.

The Trap: We often see couples who split up, sell the house, and split the cash 50/50 without a legal agreement. Five years later, one partner sues the other for a share of their superannuation or business.
The Fix: A Separation Agreement . This is a legally binding "clean break." Once signed and certified by lawyers, neither party can come back for more later. It creates a line in the sand so you can both move on.

Your Resolution: If you are serious about your partner, be serious about your finances. Have the awkward conversation now, when you are happy, rather than later when you are angry.

5. The Business Backbone

If you are a business owner, your "Life Admin" is double the workload. 2026 is predicted to be a year of economic recovery, so your business needs to be watertight to grow.

The "Business Prenup" (Shareholder Agreements)

If you are in business with someone else, what happens if:

They want to sell their shares to a stranger?
They die, and their spouse inherits their shares (and starts turning up to meetings)?
They stop working but still want their profit share?
You want to retire but there’s no agreement about buying you out and or at what price

Without a Shareholder Agreement , you are relying on the Companies Act, which is often vague on these matters. A Shareholder Agreement is your rulebook. It sets the strategy before the fight starts.

Terms of Trade & Privacy

When was the last time you updated your Terms of Trade? If they are from 2018, they probably don't cover you for the current economic climate (e.g., ability to charge interest on late payments, legal fees incurred in debt recovery and or retaining ownership of goods until paid). Also, with the Privacy Act changes, does your website have a compliant Privacy Policy?

Your Resolution: Treat your business documents like your machinery or your IT. They need maintenance. A quick review of your Terms of Trade could save you thousands.

6. Bonus Pillar: The Digital Legacy (Passwords & Crypto)

In 2026, our lives are increasingly digital, yet our legal documents often remain stubbornly analogue. If you were to pass away tomorrow, would your executor know how to access your online life? Or would your precious family photos, emails, and investments be locked away in the cloud forever?

Cryptocurrency & Digital Wallets

If you hold Bitcoin, Ethereum, or other digital assets, these do not exist in a bank vault. They live on a blockchain, accessible only via a private key or seed phrase.

The Risk: If you take your private keys to the grave, that money is gone. Permanently. It cannot be recovered by a court order.
The Fix: Do not write your passwords in your Will (Wills become public documents after probate). Instead, create a secure "Digital Memorandum" – a physical document referenced in your Will but stored separately with your lawyer or in a safe, containing instructions on how to access your digital wallets.

The "Password Purgatory"

We often see executors who can walk into a bank with a death certificate and access funds, but cannot access the deceased’s Apple ID or Google Drive to retrieve sentimental photos. Tech giants have strict privacy policies that often do not recognise traditional Wills.

The Fix: Most platforms (Apple, Google, Facebook) now have a "Legacy Contact" feature. This allows you to nominate someone to access your account after you die. Action: Set this up in your phone settings today. It takes 2 minutes. In addition, these details should be added to your digital memorandum.

Your Resolution: Audit your digital footprint, ensuring your Executor isn't left guessing passwords or fighting with Apple support.

How to tackle the list without being overwhelmed

Looking at the list above—Wills, EPOAs, Trusts, Relationships, Business, Digital Assets—it can feel like a mountain.

But you don't climb a mountain in one jump. You do it one step at a time.

Your Action Plan for 2026:

Week 1: Find your Will. Read it. Does it still make sense?
Week 2: Talk to your partner about EPOAs. "Who would speak for us?"
Week 3: Email your lawyer about the Family Trust. "Is this still worth it and if so, is it up to date?"

We are here to help

At Weston Ward & Lascelles Ltd, we have been helping Cantabrians get their affairs in order for over 140 years. We have probably seen every variation of family drama, business dispute, and estate confusion you can imagine—and we know how to plan for and tackle them.

We don't believe in scary legal jargon. We believe in practical, local advice that helps you sleep better at night.

Let’s make 2026 the year you finally get it sorted.

Contact us today to schedule a "New Year Legal Audit." Whether you just need a simple Will update or a complex Trust restructure, our team is ready to help you design a secure future.

How to navigate Christmas for separated parents

Wed, 05 Nov 2025 20:00:28 GMT

The holiday season is a time for joy, reflection, and togetherness — but for separated parents, it can bring unique challenges. Balancing festive traditions, family expectations, and the best interests of children can feel overwhelming. Whether this is your first Christmas after separation or you’ve navigated a few already, preparation and communication are key to ensuring the holidays remain positive for everyone involved.

The emotional and practical reality of co-parenting at Christmas

While Christmas is meant to be about peace and goodwill, emotions often run high when co-parenting. Each parent may want to be part of special moments such as opening presents, family dinners, or Christmas morning excitement. The reality is that children can’t be in two places at once — which means cooperation and planning are crucial.

Our Christchurch family lawyers often see the same issues arise year after year:

Disagreements about who has the children on Christmas Day or key dates like Boxing Day or New Year’s.

Travel and holiday arrangements, particularly for parents living in different cities.

Gift-giving disputes or competitive spending.

Communication breakdowns between parents.

Legal framework and family court guidance

The principles under the Care of Children Act 2004 remain central to holiday arrangements. The law prioritises the welfare and best interests of the child — not the convenience of either parent.

While there have been no major legislative changes specific to Christmas parenting schedules, the Family Court continues to encourage early mediation and Family Dispute Resolution (FDR) before formal proceedings are considered. Agreements reached outside court tend to be faster, less stressful, and more sustainable for everyone involved.

Revisit your parenting agreement or court order

If you already have a Parenting Agreement or Parenting Order, review it well before December. Check whether it includes specific provisions for Christmas, birthdays, or holidays.

If it doesn’t, speak to your lawyer about updating it. Having clarity written down removes uncertainty and reduces the likelihood of last-minute conflict.

Planning ahead makes all the difference

Start the conversation early — ideally in October or November — so there’s enough time to discuss and agree on details. Waiting until mid-December increases stress and can make compromise harder.

If your relationship with your ex-partner is strained, consider having a neutral third party — such as a mediator or your lawyer — help draft a temporary Christmas schedule.

Tips for smooth co‑parenting over Christmas

Be flexible: Unexpected events will happen. Flexibility reduces tension and shows goodwill.

Put the kids first : Christmas should be enjoyable for them — not a time to feel torn.

Avoid comparisons: Don’t try to “out-gift” the other parent. Focus on meaningful moments.

Create new traditions: If your children aren’t with you on Christmas Day, plan a “second Christmas” when they are.

Communicate clearly: Confirm details in writing — dates, times, and changeover point s.

Respect bound aries: Keep discussions focused on logistics, not past relationship issues.

What if you can’t agree on arrangements?

If discussions break down, don’t panic. The Family Court allows urgent applications for holiday contact issues, but these should be a last resort. Before filing, you must attempt Family Dispute Resolution (FDR) — a mediation service designed to help parents reach agreement outside court.

If time is short or safety is a concern, contact your lawyer immediately. They can advise on temporary arrangements or urgent orders where necessary.

Supporting children emotionally during the holidays

Children may feel guilt, sadness, or divided loyalties during the holidays. Reassure them that it’s okay to love both parents and that their Christmas will be special — even if it looks different this year.

Consider joint messages like “Mum and Dad both love you and want you to have a great Christmas,” which can go a long way toward easing anxiety.

Take care of yourself too

It’s easy to focus entirely on your children’s needs and forget your own. Plan something meaningful for the time when you’re not with your kids — dinner with friends, volunteering, or simply relaxing.

Remember: this season won’t last forever. Over time, new traditions will emerge, and things will get easier.

How Weston Ward & Lascelles can help

Our Christchurch family law team can help you draft or review Parenting Agreements, represent you in mediation or Family Court, and guide you through all aspects of co‑parenting law in New Zealand.

Whether you’re facing a dispute, needing a formal Parenting Order, or simply want peace of mind, we’re here to help you make decisions that work for your family.

Contact our family lawyers in Christchurch today on 03 379 1740.

10 Reasons you should have a family trust

Tue, 04 Nov 2025 20:46:57 GMT

Family trusts are misunderstood. They masquerade as financial planning vehicles exclusively for the fabulously rich, however, they are just as relevant for everyday working people. Weston Ward and Lascelles’ family trust lawyers in Christchurch advise a diverse range of people in ways to protect their family’s financial future. Whether you're a business owner, property investor, or simply someone who wants to ensure your loved ones are protected, understanding the advantages of a family trust is essential. Afterall, a family trust is one of the most powerful legal structures available providing families with peace of mind for generations to come.

Here are ten reasons why you should consider establishing one:

1. To keep assets in the family

This is the most common reason why people set up a family trust: to pass on family assets to the next generation. Certain assets such as a holiday home or farm, hold great sentimental value that goes beyond monetary value, and a New Zealand property trust protects these assets. Under a trust structure, after your death the asset remains in the family as it is owned by the trust entity. Without a trust in place, there are typically two options:

If you bequeath the property in your Will, it may need to be sold to divide and share proceeds among beneficiaries.

If you take the fractured ownership route, the asset is at risk of becoming unworkable in the future should relationships breakdown.

2. Make estate planning simpler and more flexible

A family trust offers unparalleled flexibility in how your estate is managed and distributed after your death , beyond what's possible through a traditional Will. A family trust can be used as a protective mechanism in a variety of situations.

Consider a scenario where you’re worried your child might lose part of their inheritance if they break up with their partner. A family trust could be set so a prenuptial agreement (contracting out agreement) is signed before they receive their inheritance. Or the trust can keep ownership of the money and loan it to your child – if the relationship ends, the trust can ask for a repayment, keeping it safe from being split with the ex.

3. Adapt easily as life and family circumstances change

Life is unpredictable. A family trust provides the flexibility to respond to changing circumstances, whether that's market fluctuations, or family developments – births, deaths and marriages, without the rigidity of other structures. Trustees have the discretion to make decisions based on current circumstances rather than being locked into predetermined arrangements that are no longer relevant to the beneficiaries needs

4. Reduce the risk of disputes over your estate

For families with complex dynamics or worries about potential challenges to estate plans, a family trust makes sure your wishes are followed but also offers robust protection against claims and support. Working with experienced family trust professionals in Christchurch ensures the trust structure maximises these benefits.

Under the Family Protection Act 1955, family members (typically spouses, partners, children, or grandchildren) can challenge your Will if they believe they haven't been adequately provided for. These claims add fuel to the fire of family fallouts and often significantly deplete estates.

5. Protect vulnerable or high-risk beneficiaries

The flexibility of a family trust extends to managing distributions for beneficiaries with special circumstances. Whether a child with disabilities, addiction issues, or simply with poor financial management skills, trustees can provide oversight, make distributions conditional on certain behaviours or achievements, or ensure funds are used for specific purposes like education or healthcare. This protective framework ensures your legacy benefits your loved ones rather than being squandered or exploited.

6. Keep your family’s financial affairs private

Unlike Wills, trust arrangements remain private. The structure, assets, and distributions of your trust don't become part of the public record, protecting your family's privacy. For business owners, or anyone who values discretion in their financial affairs, this confidentiality can be particularly important. Business competitors, estranged family members, or the public cannot gain information about your wealth and how you have chosen to distribute it.

7. Safeguard assets from relationship property claims

Under New Zealand's relationship property law , after the breakdown of a relationship your personal wealth can be seriously impacted, which may jeopardise what you are able to leave your children from previous relationships.

It cannot be overplayed the importance of seeking expert family trust advice, as developments in the law have meant they are not as protective as they once were. However, when family trusts are properly structured, they do still provide meaningful safeguards when formed as part of a comprehensive wealth protection strategy. It is crucial to seek the best legal advice.

8. Manage your family’s tax position strategically

When set up properly, family trusts help with tax planning. While the tax rules in New Zealand have changed over the years and trusts don't offer as many tax breaks as they once did, they can still help you manage your tax bill more effectively. For example, the trust can distribute income to family members who earn less and therefore pay lower tax rates. You can also choose when to distribute money in a way that makes sense for your tax situation.

If you're a business owner looking to optimise both your business and personal finances, trusts can work within the business structures to reduce your overall tax. It's important to get legal advice from a business lawyer to make sure you're doing everything by the book while getting the most benefit possible. Weston Ward and Lascelles have both family trust lawyers and commercial lawyers under one roof, who work in tandem to optimise your tax position.

9. Ensure a smooth transition for your business

If you own a business, a family trust can be a great way to pass it on to your children or others. Without a trust, your business might have to be sold after you die to divide the money among beneficiaries. With a trust, the business stays intact. Trusts provide continuity, minimise disputes, and allow for flexible distribution of income and capital, ensuring the business remains secure and aligned with the family’s long-term goals.

10. Shield personal assets from creditors and lawsuits

Once assets are transferred into a trust, they are no longer owned by you personally. This means if you are self-employed or have a business in a high-risk industry and face civil litigation in Christchurch or elsewhere, these assets are generally protected from creditors seeking to satisfy judgments against you individually. This protection can be invaluable in today’s litigious environment.

How can you create a family trust in Christchurch?

Establishing a family trust is a significant decision. It requires expert legal advice and guidance to ensure its structured correctly for your unique circumstances. Weston Ward and Lascelles experienced trust lawyers in Christchurch can guide you through every aspect of trust establishment and administration, tailored to your specific needs and goals.

Don't leave your family's future to chance. Contact our Christchurch law firm today to schedule a consultation and discover how a family trust can deliver the protection, flexibility, and peace of mind your family deserves.

Probate threshold increased to $40,000 – what this means for Kiwi families

Thu, 30 Oct 2025 00:48:44 GMT

From 24 September 2025 , the New Zealand Government increased the probate threshold from $15,000 to $40,000 — a long-awaited change that simplifies the estate process for thousands of families.

This adjustment, though seemingly small, removes the need for costly High Court applications for many modest estates, especially KiwiSaver accounts sitting between $20,000 and $40,000.

Why this change matters

The previous $15,000 limit was set decades ago when savings balances were far smaller. With KiwiSaver now a cornerstone of retirement planning, many New Zealanders had moderate accounts that still triggered the expensive probate process.

Under the old rules, families often had to spend $2,000–$3,000 on legal fees to release funds that were barely worth more than that. The new $40,000 threshold reduces this red tape and helps ensure small estates aren’t swallowed up by administration costs .

What probate actually is

Probate is the formal process where the High Court confirms that a deceased person’s will is valid and appoints the executor to manage their estate.

It gives banks, KiwiSaver providers and insurers legal proof that they’re releasing funds to the right person.

Until now, almost any estate exceeding $15,000 required probate, even if it was just a modest KiwiSaver balance or a small bank account.

What has changed

From September 2025, probate is no longer required if the deceased:

Leaves less than $40,000 in total assets in their own name, and
Does not own land or property in their own name.

This means:

Banks and KiwiSaver providers can release funds under $40,000 without a court order.
Insurers can settle small claims more easily.
Vehicles, minor investments and compensation payments can be transferred without going through the High Court.

Families will still need to provide a death certificate , identification, and proof of relationship (for example, as executor, spouse or next of kin), but they’ll avoid lengthy court delays.

Where probate is still required

Probate remains necessary when:

The estate includes land, a house or investment property .
The total value of assets exceeds $40,000 .
There are shares, bonds or significant investments .
There are disputes between beneficiaries or questions about the will’s validity.

Jointly owned assets aren’t affected — they pass automatically to the surviving owner.

Is the $40,000 limit per account or in total?

Technically, the $40,000 applies to the estate as a whole , not per account.

If a person leaves $20,000 in one bank, $15,000 in another, and $25,000 in KiwiSaver, their total estate is $60,000 — so probate is still required.

However, in practice, many banks or fund managers only consider what they personally hold .

That means one institution might release $30,000 without probate, unaware of the other balances elsewhere.

For consistency and risk management, the safest approach is to treat $40,000 as the total cap across all assets .

How to access funds without probate

If the estate qualifies under the new threshold, families can usually access funds by:

Contacting each provider (bank, insurer, KiwiSaver fund).
Completing a small-estate claim form .
Supplying a death certificate and photo ID .
Providing proof of relationship — such as a marriage certificate or a will naming the executor.
Completing a statutory declaration confirming there’s no land and total assets are under $40,000.

Each organisation has its own process, but most can release funds within a few weeks once paperwork is received.

How this affects KiwiSaver balances

KiwiSaver is one of the biggest beneficiaries of this law change.

Under the old $15,000 limit, many members’ balances exceeded the threshold by a small amount, forcing families to go to court.

Now, most KiwiSaver accounts can be released directly by the provider.

The only exception is when the account exceeds $40,000 or when the provider’s internal policies still require formal proof of authority — in which case letters of administration or probate may still be requested .

Practical examples

Example 1: Sarah passes away with $35,000 in KiwiSaver and $3,000 in a bank account. No property. → No probate required.
Example 2: John leaves $20,000 in one bank and $25,000 in another. → Probate recommended , as combined assets exceed $40,000.
Example 3: Margaret owns her home jointly with her spouse and $25,000 in KiwiSaver. → No probate required , because the house transfers automatically to her spouse.

Why legal advice still matters

Even with a higher threshold, small estates can still involve legal risk .

Banks, insurers and KiwiSaver providers may interpret the rule differently, or ask for extra proof to protect themselves from future claims.

Legal advice ensures that:

You provide the correct declarations and avoid accidental misrepresentation.
The executor or next of kin distributes funds lawfully.
Any hidden assets (like unpaid wages, dividends or tax refunds) are handled properly.
The estate remains compliant if later discoveries push the total above $40,000.

A lawyer can also help families decide whether probate or letters of administration are still the safer option to prevent later challenges.

The bigger picture – reducing stress and cost

The Ministry of Justice estimates this reform could save Kiwi families hundreds of thousands of dollars each year .
Beyond cost savings, it shortens the timeline for estate resolution — funds that once took months to access can now be released in weeks .

For many families, that means being able to cover funeral costs, settle small debts or close accounts quickly, without navigating the High Court process.

What happens if the estate includes property

The rule change doesn’t apply to land or houses.

Even if the total estate value is under $40,000, any ownership of freehold or leasehold property means probate is still required .

That’s because title transfers must go through Land Information New Zealand (LINZ), which only recognises an authorised executor or administrator.

If you’re uncertain whether the property was jointly owned or held in a trust, a lawyer can review the title and clarify which process applies.

Common questions

Does this affect living trusts?
No – trust assets are separate from your estate and follow the terms of the trust deed.

Can I use the small-estate rule for a car or insurance payout?
Yes – as long as the total value stays below $40,000 and no property is involved.

What if there’s no will?
If there’s no valid will, the rules of intestacy apply. You may still avoid probate, but might need letters of administration to prove authority.

How Weston Ward & Lascelles can help

At Weston Ward & Lascelles , our Christchurch wills and estates lawyers guide families through every stage of the estate process — from identifying assets to releasing funds or obtaining probate when needed.

We can:

Review whether the estate qualifies under the $40,000 threshold.
Assist with provider claim forms and statutory declarations.
Prepare probate or letters of administration for larger estates.
Advise executors on distributing assets legally and efficiently.

The probate threshold increase to $40,000 is a positive, practical reform that brings estate law in line with modern realities.

It makes the process faster, simpler, and far less stressful for families already navigating grief and administration.

If you’re unsure whether probate applies to your situation, or need help releasing funds from a loved one’s estate, speak to our Christchurch probate and estate lawyers today.

�� Call 03 379 1740 or visit www.wwl.co.nz to book a consultation and get clear, practical guidance.

Granny Flats without consent? Government says Yes (from 2026)

Tue, 14 Oct 2025 02:19:33 GMT

The dream of building a “granny flat” in the backyard, whether for extended family, extra rental income or simply greater flexibility, is about to get a lot more achievable.

New Zealand’s Parliament has passed the Building and Constructions (Small Stand-Alone Dwellings) Amendment Bill, which will come into effect in early 2026. The new law will allow certain small, stand-alone homes to be built without needing building consent, under clear and safe conditions.

What will the new law allow?

From 2026, homeowners will be able to build a single-storey, stand-alone dwelling of up to 70 square metres, without applying for formal building consent, as long as:

The design is simple and fully compliant with the Building Code (covering safety, energy efficiency, durability, and more)

The build is carried out or supervised by a Licensed Building Practitioner (LBP)

The homeowner notifies the Council before and after construction.

The aim is to speed up construction, reduce compliance costs, and make it easier for Kiwis to add more living space, all while keeping construction standards high.

What about Council Contributions?

Although a building consent won’t be required, homeowners will still need to obtain a Project Information Memorandum (PIM). Through this process, infrastructure contributions (e.g. for water, sewerage, and transport) can still be charged by local Councils to ensure essential services are maintained.

Complementary RMA Reforms:

In parallel, the Government plans to introduce a new National Environmental Standards (NES) to support the changes. This will allow one granny flat per property, to be built without a resource consent, so long as:

The main dwelling and the granny flat are on the same title, and

The property is residential or rural-zoned.

This move will help bypass some of the resource consent hurdles that currently slow down or block small-scale development.

How can we help?

At our law firm in Christchurch we can assist with:

Title reviews (cross-lease, unit title, easements, covenants, etc)

Checking eligibility of your section under the new framework.

Advising on legal and planning risks – especially for future subdivision, family arrangements, or tenancies.

Supporting PIM applications and compliance with Building Code standards.

Drafting tenancy agreements or family use arrangements where needed.

A practical step towards more housing:

This is one of the most meaningful regulatory shifts in housing policy in the recent years. It’s expected to enable over 13,000 new small homes in the next decade – offering relief to families, communities and renters alike.

If you’re considering building a granny flat, now is the time to start planning. Get in touch with us and our property lawyers based in Christchurch will help you get it right from day one.

The ins and out of refinancing mortgages & how to survive the process in 2025

Thu, 09 Oct 2025 02:32:06 GMT

Why refinancing is a big talking point right now

Refinancing is one of those financial decisions that’s easy to put off — until you can’t.

With interest rates now thankfully dropping from the recent high tide mark of early 2024, thousands of Kiwis will, if they have not already, roll off higher interest rates.

If you fixed your mortgage at 6.49% in 2023, you might now be looking at rates between 4% and 5% when your term expires. That’s considerably more money in your back pocket.

Example scenario

Mortgage amount: $500,000

Previous rate: 6.49%

Monthly payment: $3,157

New rate: 4.49%

New monthly payment: $2,532

Difference: You’d save $625 per month by refinancing.

That’s an extra $150 per week — bonus cash that will come in handy nowadays.

Faced with these numbers, many homeowners are asking: should I simply refix my mortgage with my current lender, or should I refinance with a new one?

Refixing vs refinancing – understanding the difference

These two terms are often used interchangeably in everyday conversation, but in the legal and financial world they mean very different things.

Refixing

Refixing is when you stay with your current lender but lock in a new fixed interest rate for a set term.

Often the simplest and fastest option.

May allow you to renegotiate your repayment structure.

Usually involves fewer legal steps than refinancing.

Refinancing

Refinancing means moving your mortgage from your current lender to a new one.

Can be used to get a more competitive interest rate or better loan features.

May involve consolidating debt, restructuring repayments, or accessing equity.

The new lender will require fresh checks: property valuation, credit history, income verification, and risk assessment.

Why refinancing might make sense even when rates are dropping

Even in today’s interest environment, refinancing can in some cases be the smarter move — sometimes for reasons that have little to do with the headline rate.

You might refinance to:

Restructure your loan for better cash flow management.

Consolidate debt into your mortgage to pay a lower interest rate than credit cards or personal loans.

Access equity for renovations, investments, or other financial goals.

Switch to a lender with better customer service or more flexible repayment terms.

Take advantage of lender incentives such as cashback contributions to offset costs; including any break-fees that might be charged by your existing bank.

The role of a property lawyer in refinancing

While refinancing might seem like a purely financial transaction, it has important legal components. Our property lawyers at Weston Ward & Lascelles:

Manage the change of mortgage on your property title.

Review and explain your new loan terms so you know exactly what you’re signing.

Coordinate settlement, ensuring your old lender is repaid and the new one is properly registered.

Check related legal matters, such as your Will, Enduring Powers of Attorney, and any guarantees you’ve given.

Step-by-step: The refinancing process in NZ

Discharge of mortgage – Your current lender is contacted for a repayment figure and release documents.

New mortgage instructions – Your lawyer prepares mortgage documentation and meets with you to sign.

Cash contribution (if required) – Any shortfall between the old and new loan amounts is paid before settlement.

Settlement day – Funds are drawn from the new lender to repay the old one.

Registration – Your new mortgage is registered against your title.

Final report – You receive confirmation of settlement and updated legal records.

Extra legal considerations when refinancing

Update your Will and EPOAs to reflect your current financial situation.

Review guarantees you’ve signed, especially if refinancing involves business lending.

Check insurance cover to ensure it still meets lender requirements.

Survival tips for homeowners under financial pressure

Start the conversation with your bank early.

Compare offers from multiple lenders.

Use a mortgage broker for wider access to deals.

Review and trim non-essential spending.

Consider splitting your loan between fixed and floating portions.

Negotiating with your lender – how to get the best deal

Be informed – Know current market rates before you start.

Ask about incentives – Cashback offers, legal fee contributions, or rate discounts.

Leverage competition – Let your lender know you’re comparing offers.

Common refinancing mistakes

Only looking at the interest rate.

Not budgeting for break fees or legal costs.

Overextending by borrowing more than needed.

Ignoring the fine print.

Your refinancing checklist

Before you start:

Review your current loan documents.

Check when your fixed term ends.

Calculate your current and projected repayments.

When comparing lenders:

Interest rates (fixed and floating).

Loan structure options.

Fees and incentives.

Flexibility for extra repayments.

Legal & financial preparation:

Engage a property lawyer early.

Update your Will and EPOAs.

Gather financial documents for the new lender.

On settlement day:

Confirm discharge of old mortgage.

Check updated title after registration.

How Weston Ward & Lascelles property lawyers in Christchurch can help

Refinancing can be a smart move — but it’s also a legal process that needs to be handled correctly. At Weston Ward & Lascelles, our Christchurch property lawyers take care of the paperwork, protect your interests, and make the process as stress-free as possible.

Call us on 03 379 1740 or visit www.wwl.co.nz to book an appointment and take the next step towards a smarter mortgage

10 Reasons to get legal advice before lending money to family

Wed, 08 Oct 2025 23:22:45 GMT

Lending money to a family member may seem like a simple, well-intentioned gesture; after all, it’s someone you love and trust, what could possibly go wrong? But when financial arrangements between family members go awry, the emotional and financial fallout can be significant. As one of Christchurch’s leading legal practices in family law and civil litigation, Weston Ward and Lascelles are unfortunately highly experienced in seeing how these disputes over money roll out. With fractured familial relationships and financial stress, the nice gesture transforms into a protracted legal battle.

To avoid the risk of a family fall out, we strongly recommend seeking legal advice before lending money, even to those closest to you. You may feel reluctant to pay legal fees, but by doing so you have an opportunity to protect your money and, more importantly, your relationships. Here are ten compelling reasons how consulting a lawyer before handing over funds keeps your loan safe:

1. Clarify whether it’s a loan or a gift

In legal terms, there’s a world of difference between a gift and a loan. If your family member later claims the money was gifted, rather than loaned, you may have no legal recourse to recover it. This is particularly problematic when there’s no written agreement.

At Weston Ward and Lascelles, we help you define the nature of the transaction clearly and legally. A simple clause or agreement makes the difference between a repayable loan and a regretted gesture of goodwill.

2. Create a legally binding loan agreement

Unlike selling or buying a property which always require a written contract, some verbal promises can be legally binding. However, they can be complex to uphold up in court, and even trickier to enforce. Enforcing a verbal contract relies on being able to demonstrate all the legal requirements of a legal contract have been met, i.e. including offer, acceptance, consideration, and an intention to create legal relations. From reading the previous sentence, you are likely feeling hot under the collar imagining the legal costs required to recoup your money.

Weston Ward and Lascelles team specialise in civil litigation in Christchurch and can draft a legally binding contract to protect both parties. Should the matter result in a dispute, you have a signed legal loan agreement that is not open to discussion.

3. Avoid confusion and misunderstandings

When financial agreements are vague (or even on the back of a beer mat), misinterpretation and misunderstandings are inevitable. Was the money exclusively for a house deposit, so why has it been used to fund a luxury overseas trip? Was it an early inheritance, or did you expect it to be paid back within six months of them starting work? Clear legal documentation ensures that everything is black and white, and everyone is on the same page.

4. Protect your money with a property trust

If the money is being used to help a family member buy property, rather than loaning money, you could consider placing the property into a trust . This allows you to retain a measure of control.

Our property law and property solutions NZ experts can assist you in structuring the arrangement, so your financial contribution is protected, whether it’s your child buying a first home or helping a sibling during financial hardship. It’s always wise to seek advice on the most tax efficient way to hold money and property – just ask!

5. Adapt your Will to reflect the loan

People forget that lending money can affect the distribution of their estate. For example, if you've loaned one child $50,000 but not the other, this has the potential to create friction later after you’ve passed. Contact Weston Ward and Lascelles Christchurch Wills and estate planning lawyers can review your Will to reflect any loans or gifts made during your lifetime. This ensures your intentions are clearly expressed and avoids conflict among beneficiaries.

6. Protect the loan in case of relationship breakdown

Under relationship law in NZ , loans between family members can be caught up in property settlement proceedings if your family member separates from their partner.

Our team provides specialist legal advice on relationship law and property law in Christchurch, helping you structure the loan so it’s not absorbed into relationship property. It hits extra hard when your money ends up as part of someone else’s divorce settlement.

7. Engage business lawyers for larger loans

If you’re lending a significant sum that resembles an investment (for example, helping a relative start a business) you should seek guidance from a lawyer experienced in business law and business advisory services. Weston Ward and Lascelles’ business lawyers based in Christchurch can advise you, whether for shareholder agreements, personal guarantees, or security over assets, our team will ensure you’re not left vulnerable if the business fails or disputes arise.

8. Know your options if they can’t—or won’t—repay

Without a contract, your ability to recover unpaid loans will be fact dependent. If your relative refuses to pay or simply disappears, civil recovery will need to be sought through the courts. We provide proactive solutions. We’re always keen to explore mediation and alternative dispute resolution but, if necessary, we can represent you in court. Unsurprisingly, having a solicitor involved early in the process tends to encourage repayment without the need for legal action.

9. Prevent financial abuse or manipulation

Unfortunately, not all family relationships are healthy. In cases where there’s pressure, coercion, or emotional manipulation involved, a lawyer acts as an impartial buffer to ensure your consent is informed and voluntary. This is particularly important for elderly family members or those in vulnerable situations. Our lawyers offer supportive, confidential guidance in these sensitive cases to protect our clients’ best interests.

10. Preserve the relationship

Ultimately, legal advice isn’t just about protecting money, it’s about protecting relationships. A well-drafted agreement creates transparency, removes ambiguity, and sets clear expectations. By involving a neutral third party like Weston Ward & Lascelles, you shift the focus from "family favour" to "mutual agreement", preserving goodwill between loved ones and preventing feelings of betrayal, entitlement, or resentment down the track.

How Weston Ward and Lascelles’ law firm in Christchurch can help

Lending money to family may come from the heart—but it should also come with sound legal planning. Don’t assume goodwill, family honour or a shared history will be enough to protect you. At Weston Ward & Lascelles, we understand that family and money are a complex mix, and the legal advice and support we give is tailored to your specific situation.

Contact Weston Ward and Lascelles and call 03 379 1740 today to schedule a consultation with our experienced lawyers in Christchurch.

Let’s make sure your kindness doesn’t become a costly mistake.

10 Reasons to update your Will after a separation

Thu, 02 Oct 2025 22:19:06 GMT

Splitting from a partner can be one of life's most significant transitions. While you're navigating custody arrangements, property division, and new living situations, updating your Will in Christchurch might seem far from urgent. However, failing to revise estate planning documents after a relationship breakdown has the potential to create devastating consequences for your loved ones and your legacy.

Under New Zealand relationship law, separation, whether from marriage or a de facto partnership, does not automatically invalidate or alter your existing Will. This means your ex-partner could still inherit your assets, make critical decisions about your estate, and exercise control over arrangements. Similarly, if your ex is designated under your Enduring Power of Attorney , you must also change these documents and revoke them – the last thing you likely want is your ex having input into health decisions and financial affairs should you lose capacity.

If you do not take action, your ex-partner will continue to hold the powers and entitlements granted to them. This article explains why you need to act quickly and how taking rewriting your Will ensures your wishes are honoured and protects your family's future.

1. Remove your ex-partner as a beneficiary

Weston Ward and Lascelle’s team of wills and estate planning lawyers in Christchurch, swiftly confirmed this as the most compelling reason to update your Will. It’s straightforward yet often overlooked and one of the most common estate planning mistakes following separation: a separation, whether you were married or in a de facto relationship, has no effect on a valid Will.

If you die without making changes, your ex-partner could still inherit under your existing Will exactly as you intended when your relationship was intact. Until you formally revoke your Will by creating a new one, that document remains legally binding. Your former partner may receive your home, savings, investments, or other assets you've since decided should go elsewhere.

2. Remove your ex-partner as executor

If your ex-partner was named as your executor, they retain the legal authority to manage and administer your entire estate unless you update your Will. This means they could remain responsible for valuing assets, paying debts, distributing inheritances, and making final arrangements.

Families can challenge the named executor’s position, but the civil litigation route delays estate administration , increases legal costs and creates avoidable stress for grieving family members during an already difficult time.

3. Appoint new beneficiaries

Separation, divorce or dissolution fundamentally shifts your priorities . Assets you once intended for your partner may now be earmarked for your children, parents, siblings, or close friends. A new Will ensures your estate is distributed to the people who matter most in your life today, not those who mattered when you originally drafted your original Will.

4. Ensure fair distribution for your children

Separation often creates complex family dynamics , especially when children are involved. Stepchildren, biological children from previous relationships, and children from your current relationship all deserve clarity about their inheritance rights.

Updating your Will ensures your children are included and their inheritance is distributed exactly as you intend. You can specify different provisions for different children, accounting for age differences, special needs, education requirements, or existing financial support.

5. Name new guardians for your children

If your ex-partner was named as guardian for your children, or if care arrangements have changed significantly since separation, you must nominate appropriate guardians in your updated Will. While surviving parents typically assume guardianship automatically, complications arise when parents have separated, particularly if there have been concerns about the other parent's capacity to provide adequate care. You may want to update your Will to nominate backup guardians, and this might include grandparents, siblings, or close family friends who understand your parenting values and can provide stability for your children.

6. Protect assets for your children

Beyond simple inheritance, you can use your Will to establish trusts or other protective structures to manage your children's inheritance until they reach maturity. These mechanisms prevent young adults from receiving substantial assets before they're ready to manage them responsibly.

Through a carefully structured New Zealand family trust , you can appoint trustees to manage property, investments, and other assets for your children's benefit, covering education costs, healthcare needs, and living expenses while preserving capital for their future. This proves especially valuable if you've accumulated significant wealth through business solutions NZ ventures or property investments.

7. Address jointly held assets

Jointly held property presents particular complications after separation. While property law in Christchurch dictates how relationship property is divided, your Will should clearly define how jointly held assets will be dealt with to ensure they don't pass to your ex-partner through survivorship rights. Working with experts in property law service and conveyancing Christchurch ensures these assets are properly addressed in your estate planning documents, preventing unintended transfers.

8. Reflect changes in your financial circumstances

Separation invariably affects your financial position. Property settlements, spousal support obligations, and the costs of establishing separate households all impact your net worth. Major changes in your finances or significant changes to your assets require a comprehensive Will review to ensure it aligns with your current financial situation.

You may have received relationship property through separation agreements or acquired assets your old Will doesn't include, in which case updating is essential. Your Will should account for all current assets and liabilities, providing clear instructions for everything you own.

9. Prevent unintended consequences

Without an updated Will, assets intended for your ex-partner may fall under intestacy rules if other provisions fail or beneficiaries predecease you. These rules follow rigid formulas that rarely align with individual circumstances, potentially distributing your estate to distant relatives rather than those you'd choose to benefit.

Intestacy often triggers unnecessary civil litigation in Christchurch as family members dispute what you "would have wanted," creating conflict and legal expenses that diminish the estate's value. A new, clear Will prevents these disputes by leaving no ambiguity about your intentions.

10. Maintain clarity and control

Updating your Will is one area of your life where you maintain complete control, clearly stating your wishes for your assets and dependents during uncertain times. This clarity benefits everyone: your children understand their inheritance, your executors know their responsibilities, and your family avoids confusion or conflict about your intentions.

How to update your will after separation

Weston Ward and Lascelles make updating your Will straightforward, and makes sure costly mistakes are avoided. The process typically involves:

· Consulting with estate planning specialists who understand relationship law NZ complexities.

· Reviewing all your assets, including property, business interests, and investments.

· Identifying new beneficiaries and removing your ex-partner.

· Appointing appropriate executors and trustees.

· Addressing guardianship arrangements for minor children.

· Establishing trusts if needed to protect children's inheritances.

Take action today – Call Wills and Estate Planning lawyers in Christchurch

Aside from healing from the emotional trauma, separation demands immediate attention to countless practical matters, housing, finances, and childcare, all of which compete for your focus. However, updating your Will is one of the most important steps you can take to protect your family's future and ensure your wishes are respected.

Don't leave your estate vulnerable to outdated provisions that no longer reflect your circumstances or intentions. Our experienced team understands the sensitive nature of relationship breakdowns and provides compassionate, professional support tailored to your unique circumstances. We'll help you create clear, legally sound documents to protect your loved ones and provide you with peace of mind. Contact us today to schedule a free confidential consultation and take control of your estate planning after separation. Call 03 379 1740.

10 Reasons to read and understand your Occupation Right Agreement before signing

Wed, 17 Sep 2025 21:53:28 GMT

Moving into a retirement village represents one of life's most significant transitions, often involving substantial financial commitment and long-term lifestyle changes. In New Zealand, Occupation Right Agreements (ORAs) govern this unique form of housing arrangement, yet many prospective residents underestimate the complexity and legal implications of these documents.

Ask yourself: would you ever sign a Sale and Purchase Agreement without a lawyer’s advice ? For most, the answer is an immediate ‘of course not.’ An Occupation Right Agreement ORA deserves the same level of care and due diligence, it’s just as significant, if not more so.

As experienced property lawyers in Christchurch, Weston Ward and Lascelles have witnessed countless situations where inadequate understanding of ORA terms has led to disputes, civil litigation , and financial hardship – sources of avoidable and unnecessary stress for residents and their families. Seeking legal advice before you sign on the dotted line remains your best defence against unexpected complications. Don't let the excitement of finding your perfect retirement home cloud your judgment regarding this crucial legal document.

Here’s how Weston Ward and Lascelles property lawyers help you:

1. Understand your visitor rights and restrictions

Your ORA will detail specific provisions regarding visitors, including overnight stays, duration limits, and approval processes. Some villages impose strict restrictions on how long guests can stay or require advance notice or approval for extended visits. These limitations could significantly impact your social connections potentially limiting precious time with grandchildren or access to support during illness. It’s crucial these terms support your lifestyle.

2. Know what modifications you can make to your living space

The ability to personalise your unit varies dramatically between villages. Some agreements prohibit any alterations whatsoever, while others allow minor modifications with prior approval. Understanding these restrictions is essential, particularly if you have specific accessibility needs or wish to create a comfortable living environment that reflects your personality. Failure to comply with modification restrictions typically results in costly remedial work at your expense when you eventually leave.

3. Clarify pet ownership policies and procedures

Pet policies in retirement villages range from complete prohibition to conditional acceptance with specific requirements. Your ORA should clearly outline whether pets are permitted, what types and sizes are acceptable, and any associated fees or deposits.

Some residents only realise too late that their pet isn’t allowed, leaving them with the difficult choice of rehoming or finding alternative accommodation. Conversely, if you’re not a fan of animals, it’s important to appreciate your neighbour may have a pet you’re uncomfortable with . Seeking professional property law advice helps you negotiate pet clauses to safeguard both your interests and your pets, ensuring clarity and harmony for all involved.

4. Identify financial obligations and fee structures

ORAs contain complex financial arrangements extending far beyond the initial entry payment. Service charges, maintenance contributions, utilities, and activity fees are typically ongoing; however, some villages impose fixed fees, while others allow annual increases tied to inflation or other indices.

Understanding whether fees are capped, what services are included, and your liability for unexpected costs is crucial for long-term financial estate planning . Some residents are shocked when fee increases substantially exceed their pension or superannuation income growth – forewarned is forearmed.

5. Understand resale processes and your level of control

Unlike selling a property traditionally , residents typically have limited control over the marketing and sale of their unit. The ORA states who handles the resale process, associated marketing costs, and timeframes for settlement. Some agreements allow the village operator complete control over pricing and marketing strategies, potentially leaving you waiting months or years for your capital to be released.

6. Calculate true exit costs and deferred management fees

Exit costs represent one of the most significant financial considerations in retirement village living. Deferred Management Fees typically range from 20-30% of your entry payment and may increase over time. Additional exit costs might include refurbishment expenses, legal fees, and marketing costs. These combined expenses can substantially reduce the capital available to fund future accommodation or care needs.

7. Know termination conditions and your rights

ORAs specify circumstances under which either party can terminate the agreement, including health-related relocations, behavioural issues, or financial default. Understanding these termination clauses protects you from unexpected displacement and ensures you know your rights if disputes arise. Some agreements grant villages broad discretionary powers to terminate occupancy, while others provide stronger resident protections. Professional legal advice identifies potential problematic clauses and suggests protective amendments.

8. Establish maintenance responsibilities and standards

Maintenance obligations vary significantly between villages and can include substantial ongoing costs. Your ORA should clearly define who is responsible for interior maintenance, exterior upkeep, garden care, and emergency repairs. Some villages require residents to maintain units to specific standards at their own expense, while others include comprehensive maintenance in service fees. With clarity about your obligations, you can budget accurately and avoid disputes.

9. Evaluate future care provisions and transition procedures

Many residents enter retirement villages expecting seamless access to higher levels of care as their needs change; however, ORAs do not necessarily guarantee care availability, and transition procedures can be complex and expensive. Some agreements allow villages to relocate residents to care facilities with different fee structures, potentially doubling accommodation costs. Understanding care provisions and associated financial implications is crucial for long-term planning.

10. Understand dispute resolution mechanisms and your legal protections

Despite best intentio ns, disputes can arise between residents and village operators. Your ORA should outline clear dispute resolution procedures, including mediation processes, timeframes for responses, and escalation mechanisms. Understanding these procedures and your legal protections under the Retirement Villages Act 2003 means you can seek help without compromising your occupancy rights.

Weston Ward and Lascelle: protecting your investment and lifestyle

Retirement village living offers many benefits, including community connection, security, and access to services. However, the financial and legal complexity of ORAs should not be underestimated.

If you're considering retirement village living or have already received an ORA for review, contact our experienced property law team in Christchurch. If you have already signed and are within the 15-working day cooling off period provided under New Zealand law, we urge you to contact us as a matter of urgency. We provide detailed agreement analysis, plain-English explanations of terms and conditions, and practical advice to help you make informed decisions about this important life change. If you have already signed and are over the 15-working day limit, contact us for jargon free details of the contract – what your obligations are, and what theirs are to you. Your future comfort and financial security deserve nothing less than expert legal protection.

Contact Weston Ward and Lascelles today and speak to a Christchurch legal team who understand the unique challenges facing retirees and the village living experience. Book your appointment now and gain peace of mind. Call 03 379 1740.

10 Reasons why blended families need tailored wills

Wed, 17 Sep 2025 21:31:01 GMT

According to Statistics New Zealand, one in every three marriages is a second or subsequent marriage. Blended families have become increasingly common across New Zealand and can be beneficial for both families. Parents can share responsibilities more effectively, and families often develop a strong sense of resilience as they learn to adapt together. These new structures can foster empathy, flexibility, and inclusivity, helping family members grow in ways that may not have been possible in a single parent setting.

However, while the emotional and social benefits of blended families are significant, they also introduce layers of financial and legal complexity, particularly when it comes to estate planning. The merging of two families through remarriage or de facto relationships means the legal landscape becomes significantly more complex, requiring specialist legal advice to navigate successfully. Questions around inheritance, fairness between biological and stepchildren, and ensuring the security of a surviving spouse require careful forethought to prevent misunderstandings and future disputes.

Here are ten compelling reasons why blended families must invest in professionally tailored will and estate planning .

1. Overlapping claims under the Family Protection Act

The Family Protection Act 1955 places a duty on you to provide proper support for your spouse, children, stepchildren, and sometimes grandchildren. In blended families, this creates overlapping obligations that can result in competing claims against your estate.

Without careful planning, your de facto partner could make a successful claim that reduces your children's inheritance. The Act doesn't clearly specify how much property you should leave to meet these obligations, so advice from wills and estate lawyers in Christchurch is essential to protect your wishes.

2. Equal sharing of assets under the Property (Relationships) Act

After three years of marriage or living in a de facto relationship, the Property (Relationships) Act 2001 presumes all relationship property is shared equally (50/50). While this may seem fair, it can reduce what children from earlier relationships inherit.

The only way to prevent this is with a ‘ contracting out agreement’ , which must be prepared with specialist relationship law NZ expertise. Without it, your new partner could automatically claim half of assets you had intended for your children. This makes relationship law consultation crucial for protecting your children's inheritance rights.

3. Joint property ownership bypasses your will

When blended family partners own property jointly, that property automatically passes to the surviving partner upon death, completely bypassing your estate. It never becomes part of the estate and therefore isn’t governed by your will.

This can leave children without access to the family home, causing stress and conflict. Seeking advice from property law in Christchurch experts ensures ownership structures are set up in line with your intentions.

4. Constructive trust claims can override your will

Even if property is in your name alone or held in a trust, a partner may be able to claim a share by showing they contributed to its value, for example, through renovations or financial support. This civil litigation risk means that despite your will's provisions, courts can recognise your partner's contributions and award them a share of assets you intended for your children. Early litigation support identifies and mitigates these risks during the planning stage reducing reduce the risk of claims derailing your estate plan.

5. Testamentary promises can create unexpected claims

This often-overlooked legislation permits people to make claims if they can prove you promised to reward them in your will for work or services. This might include stepchildren helping in a family business, or a partner providing long-term care, or even adult children who sacrificed career opportunities to assist you. Even if your will says otherwise, these claims may succeed. For families with businesses, seeking business consulting services in Christchurch alongside legal advice is essential to prevent confusion later.

6. Trust don't automatically provide full protection

Many families set up New Zealand property trusts to safeguard assets , but in blended families these can still be challenged. If a fiduciary relationship (such as a step-parent acting as executor for stepchildren) existed, or if a partner contributed to trust property, courts may recognise claims against those assets.

Additionally, if your partner contributed to trust property value increases, constructive trust principles may apply. Understanding property law NZ vital when structuring trusts.

7. Capacity undue influence challenges are common

Family tensions in blended households sometimes fuel suspicions that wills were made under pressure. Adult children may claim their parent lacked capacity or was influenced by a new partner.

These disputes often lead to costly and emotional civil litigation. Taking advantage of Enduring Power of Attorney services in Christchurch and advice from experienced civil litigation lawyers can reduce the likelihood of such challenges succeedin g.

8. Different children may have different needs and entitle ments

In blended families, children often have different relationships with the deceased parent and varying levels of financial need. Some may have been estranged, while others provided significant care or contributed to estate growth. Courts weigh these differences under the Family Protection Act, but equal distribution is not always seen as fair. A tailored will addresses these differences while minimising the risk of civil litigation in Christchurch .

9. Estate size and complexity requires professional management

Blended family estates often include multiple properties, trusts, or even family businesses. Larger estates make it easier to accommodate competing claims, but they also require sophisticated management. This is where business advisory services and business law expertise are essential, working alongside property conveyancing Christchurch professionals to structure and manage assets effectively.

10. Communication and documentation are critical for success

Finally, the biggest safeguard is clear communication and detailed documentation. If your will explains why assets are divided unequally, it shows the court your reasoning was thoughtful and deliberate. This reduces the risk of successful challenges and costly civil litigation NZ cases for your family.

The Path forward with Weston Ward and Lascelles: professional estate planning you can trust

Given these complexities, you cannot afford to rely on goodwill, standard will template or general legal advice. Until New Zealand law is updated to better reflect modern families, professional legal advice remains the best protection for your estate, including:

· Property law service and property law in Christchurch.

· Relationship law NZ and contracting-out agreements.

· New Zealand property trust establishment and management.

· Ongoing reviews as family circumstances change.

When disputes occur (which they invariably do), there is typically an exclamation of ‘it’s only the lawyers who win’, and it’s true. The emotional and financial costs of post-death litigation far exceed the investment in proper estate planning. Your loved ones deserve the security that comes from comprehensive, professionally crafted estate planning designed for the realities of blended family life.

Contact Weston Ward and Lascelle ’s experienced will and estate planning lawyers in Christchurch today to ensure your will reflects your true intentions while minimising the risk of family disputes.

10 Reasons why having enduring powers of attorney (EPOAs) matters

Mon, 11 Aug 2025 22:46:36 GMT

In spite of this enlightened age of amplified communication, there is typically a deafening silence when it comes to talking about death and her friend incapacity. Yet, it is something we all need to prepare for. Yes, the conversation can be awkward, especially when talking to elderly parents, but it is necessary. What happens to you before you pass, is so very important, but even more so if you become unwell or don’t have capacity to voice your needs and wants or are no longer able to manage your affairs.

This is where an Enduring Power of Attorney (EPOA) becomes essential. At Weston Ward and Lascelles, we often say an EPOA is as important as your Will. It gives you legal protection while you’re still alive to ensure your financial, health and personal matters are handled by someone you trust, in a way that you would want.

Below, we explain 10 reasons why having an EPOA in place is one of the most responsible legal decisions you can make.

1. They’re not just for older people

It’s a common myth that EPOAs are only for the elderly. But the reality is anyone, regardless of age, can experience an unexpected accident, stroke, or illness that affects their ability to make decisions. Putting EPOAs in place while you are young and healthy is not pessimistic. It’s practical, preventative, and protective. Just like insurance or estate planning, it’s about safeguarding you and your family’s future before a crisis hits.

2. You stay in control, even if you lose capacity

EPOAs allow you to appoint a trusted person (or people) to make decisions on your behalf, should you become mentally incapable due to accident, illness, or age-related decline. By putting this in place while you are well, you decide who speaks and acts for you. Without an EPOA, that power may be given to someone you wouldn’t have chosen. Control over your life doesn’t need to end with incapacity; it just needs to be delegated thoughtfully, with legal backing.

3. You avoid delays and legal uncertainty

If you lose capacity and do not have an EPOA in place, your loved ones may have no legal authority to make decisions on your behalf. They might have to apply to the Family Court to be appointed as your welfare guardian. A process that can be slow, stressful, and expensive, it typically occurs at a time of crisis – when the emotional reserves of families are already being challenged. Having an EPOA in place avoids this additional heartache, as your nominated attorney can step in seamlessly and legally.

4. You choose who manages your affairs

At Weston Ward and Lascelles, our clients often tell us how comforting it is to know that they, and not the court system, will decide who advocates for them during times of vulnerability. With an EPOA, you get to choose who makes decisions about your health, wealth and financial matters, rather than left to chance or default appointments.

5. You protect yourself against financial mismanagement

Sadly, mental incapacity can leave people vulnerable to poor decision-making, scams, or financial abuse, even from within the family. An EPOA for property and finance ensures someone you trust is legally responsible for managing your money, paying bills, handling investments, and protecting assets.

This is particularly relevant for individuals with complex holdings, such as a New Zealand property trust , business interests, or retirement savings. Our business law and property law service teams help ensure your finances remain secure and well managed, regardless of what the future holds.

6. You ensure personal care decisions reflect your values

A Personal Care and Welfare EPOA covers decisions about your medical treatment, living situation, and day-to-day welfare. With this document, you ensure that the person making those decisions understands your wishes, beliefs, and lifestyle.

Our team regularly assists clients in tailoring their EPOAs to reflect religious preferences, end-of-life care choices, or family arrangements. We pride ourselves on providing compassionate and personalised legal guidance to help navigate and protect your decisions.

7. You ease the burden on your family

Without EPOAs, loved ones are left to second guess what you would have wanted. This often leads to confusion, stress, or even conflict during already emotionally difficult times. Having an EPOA in place removes this burden, allowing your family to support you confidently with the knowledge they are following your wishes. We regularly see the relief that families feel when they are caring or acting for you within a robust legal EPOA. It not only eases practical concerns but also protects their relationships.

8. You can set limits or conditions

Contrary to popular belief, EPOAs aren’t one-size-fits-all. You have the power to set very specific conditions around when they come into effect, what types of decisions they cover, and who your attorneys must consult with. For example, you might specify your son must get the agreement of another trusted person before selling property or making medical decisions. This is particularly useful in cases involving property conveyancing Christchurch or shared business ventures.

Our lawyers help clients customise their EPOAs to align with their unique family, financial, and personal circumstances, drawing on expertise across business consulting services , property solutions NZ, and relationship law NZ as needed.

9. They complement your Will

Your Will outlines what happens to your assets after you pass away. Your EPOAs cover your wellbeing and financial affairs while you are alive. Together, they provide a complete legal safety net for every stage of life. Some of our clients who come in to make Will in Christchurch are surprised to learn how vulnerable they are without EPOAs. By creating an Enduring Power of Attorney (EPOA) alongside your Will, you close the gap between estate planning and capacity protection.

10. Peace of mind for you and your family

Above all, having EPOAs in place gives you peace of mind. You know that if something happens, someone you trust is legally empowered to take care of you and your affairs. It also reassures your family they’re not going to be left guessing or navigating red tape in a crisis.

Ready to protect your future with EPOAs?

Our expert legal team provides tailored EPOA advice and documentation, working across the full legal spectrum of services. Whether you’re preparing for retirement, safeguarding your business interests, or ensuring care for your children or dependents, we offer practical, compassionate support every step of the way. From simple EPOAs to more complex arrangements involving property law service, business advisory services, or New Zealand property trusts, we’ve got the experience to help you plan wisely.

Legal planning can be one of the greatest gifts you give your family—and yourself. Contact Weston Ward and Lascelles today and speak to a Christchurch legal team that understands the importance of planning ahead. Book your appointment now, and gain peace of mind for whatever life brings. Call 03 379 1740.

What happens to your deposit when buying property?

Thu, 24 Jul 2025 02:06:02 GMT

Buying a property is one of the most significant financial decisions you'll make in your lifetime. Whether you're a first home buyer in Christchurch or an experienced investor, understanding the conveyancing process is crucial for protecting your interests and ensuring a smooth transaction.

Weston Ward and Lascelles’ Christchurch property lawyers have guided countless clients through the complexities of buying and selling property, but one area of the process is typically misunderstood by clients, and that is what happens to your deposit when you are buying a property. It’s an important aspect of property conveyancing, so this article is to fill in any gaps and help you navigate this element of the transaction.

Understanding property deposits in New Zealand

A deposit is an initial payment made by the buyer to the seller and represents a proportion of the total of the purchase price.

The deposit is usually payable on the purchaser confirming that all conditions inserted in the contract for the benefit of the purchaser have been satisfied i.e. the deposit is usually payable when the contract goes unconditional. But note auctions are different. If you have bought a property at auction the deposit must be paid immediately upon winning the auction, as typically auctions are unconditional on the fall of the hammer.

If you do not pay the deposit immediately after winning an auction, the vendor would immediately be entitled to cancel. But if you did not pay the deposit on a property (not purchased at auction) immediately after you confirmed that all conditions inserted in the contract for your benefit have been satisfied, this would not usually entitle the vendor to immediately cancel the contract. The vendor would first have to serve notice on you requiring you to pay the deposit within 3 working days or else!

A deposit serves as assurance for the vendor that the purchaser is serious about completing the transaction and offers financial protection to the vendor if the buyer defaults. For purchasers, it demonstrates good faith and secures their right to complete the property purchase under the agreed terms of the Sale and Purchase Agreement.

The legal process of paying your deposit

The process of paying a deposit in New Zealand follows strict legal requirements designed to protect all parties involved. Whilst agents often draw up Sale & Purchase Agreements with the deposit amount specified as 10% of the purchase price, there is no legal requirement for the purchaser to pay a deposit of 10% of the purchase price. Vendors will often accept a smaller deposit, especially if that smaller deposit amount is enough to cover the agent’s commission. So, a deposit of $25,000 might sometimes be acceptable to a vendor.

The vendor should require payment of a deposit amount that at a minimum is enough to cover their agent’s commission. Commission is only paid if the agent secures an unconditional sale. If the buyer later defaults, the vendor still owes the agent commission . Once you sign the Sale and Purchase Agreement , the deposit is typically paid to the real estate agent's trust account. However, there are important exceptions to this general rule:

A) If you are buying an off plan house and land package

The deposit funds must be paid directly to the vendor's lawyer's trust account, where hopefully the contract is worded to require the vendor’s lawyer to hold the deposit as 'stakeholder' until settlement occurs. There’s often a long timeframe between deposit being paid and settlement, and high risk of the developer entering financial difficulty, so it is important that the contract is worded to require the vendor’s lawyer to hold the deposit as stakeholder until settlement occurs.

Every house and land package contract is different, so it's essential if you are considering purchasing one of these, that you have experienced and trusted property lawyers review the entire agreement prior to signing to ensure the deposit is protected.

A) If you are using KiwiSaver funds to buy a property

The Sale and Purchase Agreement must be amended to include a clause confirming KiwiSaver funds are being used for the deposit. These funds are held in the seller's lawyer's trust account until settlement, with no possibility of early release. The timing between signing, confirmation, and settlement must give enough time for the KiwiSaver funds to be withdrawn.

What happens between signing and settlement?

The period between signing the Sale and Purchase Agreement and settlement is when your deposit enters a highly regulated holding pattern. Under current property law in New Zealand, until a deposit has been held by a real estate agent for 10 working days, the funds technically still belong to the buyer. This provides an important protection period during which purchasers retain certain rights over their deposit funds, crucial for if the vendor requests funds to be released early (see below)

Trust account protection and release conditions

The protection of deposit funds through strictly regulated trust accounts is a cornerstone of New Zealand's property conveyancing system providing security for both buyers and sellers. The real estate agents and lawyers who hold these funds are bound by professional obligations and regulatory requirements to ensure the money is properly safeguarded.

While the funds are held in the trust account, vendors can request an early release of the deposit, which is often used to fund the deposit on their next property. If you are a vendor and need access to the deposit funds, you will need to seek legal advice from your property lawyer to explore whether negotiating with the buyers is an option, and to confirm whether the bank approves the release. It is important to note that when a mortgage is registered over a vendor’s property that is mortgaged to the hilt, the bank might require the vendor’s lawyer to hold all of the deposit in their trust account until settlement, so funds are available on settlement to repay the mortgage.

Understanding the risks of early fund release

Within the first ten days of the deposit being made it is possible for vendors to request the early release of funds (less the commission owed to the agent). However, buyers are under no legal obligation to agree to this request. This decision should be made carefully having taken advice from their property lawyer, there are significant potential risks involved:

Loss of leverage : once the deposit is released, the buyer loses a key bargaining tool if issues arise before settlement.

Risk of vendor default : if the seller fails to settle or breaches the contract and a dispute arises, recovering the early-released deposit can involve civil litigation to recover the funds and the buyer may face complications or financial loss.

Reduced protection : the deposit system is designed to protect all parties. Releasing it early weakens that safeguard.

If as a Purchaser you cancel for a legitimate reason – says the house burns down after going unconditional but before settlement, the purchaser is entitled to cancel the contract and the vendor is under a legal obligation to fully refund the purchaser their deposit. But if the purchaser agreed to release their deposit early, the agent will have deducted their commission before paying the balance of the deposit to the vendor. Meaning, that the vendor might not have the financial wherewithal to full refund the purchaser their deposit.

For vendors, the risks are different but equally important to understand.

Take action to protect your finances

Modern property conveyancing in Christchurch and throughout New Zealand involves navigating increasingly complex regulations and contract terms. What might seem like straightforward deposit arrangements can have significant implications for your financial security and legal obligations. The timing of deposit payments and releases requires careful coordination between all parties involved in the transaction. Whether you're dealing with standard residential purchases, commercial property transactions, or complex house and land packages, each situation has unique requirements that demand professional expertise.

Don't leave your property investment to chance. Contact our experienced property law team in Christchurch today. Our comprehensive property conveyancing services are designed to give you confidence and peace of mind in one of life's most important financial decisions. Call 03 379 1740 or email enquiry@wwl.co.nz for all your conveyancing needs.

Separated parents: taking children overseas for holidays — do you need the other parent's permission?

Tue, 15 Jul 2025 02:04:19 GMT

Planning a family holiday should be an exciting time filled with anticipation and joy. However, for separated or divorced parents, the prospect of taking children overseas can quickly become a complex legal maze fraught with uncertainty and potential conflict. Child abduction is when one parent takes a child overseas without one of the parent’s express agreement , it’s a serious scenario with potentially long-term consequences. Understanding your rights and obligations under New Zealand law is crucial to ensuring your holiday plans don't turn into a legal nightmare.

The legal framework: your obligations under New Zealand law

When parents separate or divorce, the legal landscape around children's travel changes significantly. Under the Care of Children Act 2004, both parents typically retain guardianship rights unless a Court Order states otherwise. This means that major decisions affecting a child's welfare, including international travel, require careful consideration of both parents' rights.

The fundamental principle governing family law in Christchurch and throughout New Zealand is that the children's best interests must always come first. This legal framework creates specific obligations for parents planning overseas travel, regardless of who has day-to-day care of the children.

Do you need permission from the other parent?

The short answer is: yes, in most cases but it depends on your specific circumstances. If you share legal guardianship or parental responsibility with your ex-partner (which is the default position unless varied by a Court Order), you generally need their consent before taking children overseas. Note: this requirement exists even if you have primary care of the children or if they live with you most of the time.

Several factors influence whether you need explicit permission:

Guardianship arrangements : if both parents remain legal guardians, consent is typically required. However, if one parent has sole guardianship by Court Order, they may have broader decision-making authority.

Existing Court Orders : Parenting Orders or Separation Agreements may include specific provisions about international travel. These documents might outline notification requirements, advance notice periods, or automatic consent provisions for certain circumstances.

Duration and nature of travel : While the law doesn't distinguish between short holidays and extended trips, practical considerations often differ. A week-long holiday to Australia might be viewed differently than a three-month European adventure.

The safest approach is to obtain written consent from the other parent well in advance of your planned departure. This protects both you and your children from potential complications at the border (especially if you have different surnames, in which case travelling with birth certificates is also recommended).

What happens if one parent withholds consent?

Unfortunately, disagreements about overseas travel are common in separated families. When one parent unreasonably withholds consent, it can create significant stress and disappointment, particularly when holiday bookings have already been made.

If you believe the other parent is being unreasonable, you have several options:

Direct negotiation : sometimes, concerns can be addressed through open communication. The other parent may have specific worries, whether about safety, duration, or missing contact time, so talking directly may help you understand their worries and find compromises.

Mediation : Family dispute resolution services can help parents reach agreements without the need for court intervention. Mediation is often faster and less expensive than civil litigation in Christchurch courts , with the additional benefit of preserving co-parenting relationships.

Legal intervention : when all other approaches fail, court action may be necessary. This is where experienced family lawyers in Christchurch can provide invaluable guidance.

Applying to the Family Court for permission

When agreement cannot be reached, the Family Court has jurisdiction to make decisions about children's international travel. The court process involves several key steps and considerations.

You'll need to file an application seeking the court's permission to take the children overseas. This application must include detailed information about your proposed travel, including destinations, duration, accommodation arrangements, and how you'll maintain the children's connection with the other parent during the trip.

The court will examine various factors when making its decision. These include the children's best interests, the purpose and duration of travel, arrangements for maintaining contact with the other parent, and any risks associated with the trip. The court may also consider the children's own views, depending on their age and maturity.

Court processes can take several weeks or months, so early action is essential. In urgent situations, the court may expedite proceedings, but this cannot be guaranteed. Planning ahead is always preferable to last-minute applications.

While you can represent yourself, the complexity of family court proceedings often makes professional legal advice worthwhile. Legal Aid is not guaranteed ; however, it may be granted to prevent a child from being taken without consent from New Zealand if you meet the financial and merit requirements. Seek legal advice from an experienced family lawyer as soon as you can. Family lawyers can help navigate the process efficiently and present your case effectively.

Common pitfalls and practical advice

Many separated parents encounter preventable problems when planning overseas holidays. Understanding these common pitfalls can save significant stress, time, and money.

Documentation errors : Ensure all travel documents are current and correct. All children, including newborns need their own passports, and some countries require specific visa arrangements. While only one parent can apply for a passport, parents with parental responsibility must consent. Always check requirements well in advance.

Border complications : immigration officials at departure and destination points may question single parents traveling with children. Carry relevant Court Orders, consent letters, and contact information for the other parent. Some countries require notarised consent documents or specific official translations. Always check requirements well in advance

Communication breakdown : keep the other parent informed about your travel plans, even when you're not legally required to do so. Providing itineraries, contact information, and regular updates can prevent misunderstandings and build trust for future travel requests.

Emergency planning : prepare for unexpected situations. Before you travel, ensure you have legal authority to make medical decisions for the children while overseas, and establish a plan B for emergencies or itinerary changes. This can include checking your travel insurance covers all family members and includes provisions for emergency medical treatment, trip cancellation, and early return if necessary. Research your destinations thoroughly, understand local laws and customs, and ensure you have appropriate support networks available if needed.

Moving forward: working with Weston Ward and Lascelles’ Christchurch family lawyers

The intersection of family law NZ and international travel creates a complex legal environment that requires careful navigation. With proper planning, clear communication, and professional guidance when needed, overseas holidays can remain a positive experience for separated families. Legal advice from our Christchurch family lawyers can make the difference between a smooth holiday experience and a costly legal dispute.

Weston Ward and Lascelle’s family lawyers understand the complexities of modern family dynamics and can help you navigate the legal requirements while focusing on what matters most—your children's wellbeing and your family's happiness. If you would like to talk to one of our family lawyers, call 03 379 1740 , our team is here to support you every step of the way.

The life cycle of buying property in New Zealand: your complete guide

Fri, 13 Jun 2025 04:09:19 GMT

Purchasing property represents one of the most significant financial decisions you'll make in your lifetime. Whether you're a first-home buyer stepping onto the property ladder or an experienced investor expanding your portfolio, understanding the complete lifecycle of property acquisition in New Zealand is crucial for making informed decisions and avoiding costly mistakes.

The property buying journey is far more complex than simply finding a house you like and signing papers. It involves multiple stages, each requiring careful consideration, professional guidance, and adherence to New Zealand's property laws . This comprehensive guide will walk you through every phase of the process, highlighting where professional property law expertise becomes essential.

Stage 1: Initial planning and preparation

Before you begin searching for your dream property, thorough preparation forms the foundation of a successful purchase. This preliminary stage involves establishing clear goals, understanding your financial position, and assembling your professional support team.

Financial preparation extends beyond simply knowing how much you can borrow to buy a property . You must consider additional costs including legal fees, building inspections, insurance, rates, and potential renovation expenses. Some buyers underestimate or even forget these ancillary costs, which can significantly impact the budget and purchasing power.

Building your support crew early is crucial. You'll need a mortgage broker or bank, insurance provider, and most importantly, a qualified property lawyer specialising in conveyancing who can answer your questions about buying property . In Christchurch, where earthquake-related property issues remain relevant, having experienced property law professionals becomes even more critical. These experts understand local regulations, potential hazards, and the intricacies of property law in Christchurch.

Stage 2: Property search and evaluation

Once your finances are sorted and your team assembled, the active search begins. This phase involves attending open homes, arranging private viewings, and gradually narrowing your options based on your predetermined criteria.

Understanding different methods of sale is crucial during this stage. Properties may be sold through advertised price, deadline sale, negotiation, tender, or auction. Each method has distinct processes, timelines, and strategic considerations. Your property law service provider can explain the implications of each approach and help you develop appropriate strategies.

During viewings, maintain objectivity and look beyond surface aesthetics. Consider structural integrity, location factors, potential for capital growth, and any red flags that might indicate future problems ( hello mortgagee sales ). Document your observations and questions for later discussion with professionals.

Stage 3: Due diligence and property research

When you identify a property of interest, comprehensive due diligence becomes paramount. This investigative phase can make or break your investment and requires systematic attention to detail to ensure the property meets all legal requirements and has no outstanding issues that could affect your ownership.

Begin with a title search to understand exactly what you're purchasing. The record of title reveals ownership details, easements, covenants, and any encumbrances affecting the property. This document is specific to your target address and provides crucial information about restrictions or limitations. Your property law specialist also conducts searches regarding rates, building consents, and compliance certificates

Understanding local hazards and issues requires thorough research. In New Zealand, this includes natural disaster risks, flooding potential, soil conditions, and zoning restrictions. Christchurch buyers must pay particular attention to earthquake-related considerations, including land classification and repair histories. Engaging a qualified building inspector, especially for older properties or those in areas with known issues, can identify structural problems, weatherproofing issues, or code compliance concerns that could prove expensive later.

Stage 4: Making an offer

Armed with thorough research, you're ready to make an offer. This stage requires careful strategy, as you may only get one opportunity to present your best case to the vendor.

Your offer can be conditional or unconditional, depending on your confidence level and the sale method. Conditional offers might include clauses for finance approval, satisfactory building inspection, or legal review. While conditions provide protection, they can make your offer less attractive in competitive situations.

Understanding the multi-offer process becomes crucial in hot markets. When multiple buyers compete for the same property, vendors can choose the offer that best meets their needs – not necessarily the highest price. An offer with fewer conditions might succeed over a higher but heavily conditional bid.

Your property conveyancing lawyer plays a vital role during offer preparation, ensuring your interests are protected while maintaining competitive appeal. They'll draft appropriate conditions, set realistic timeframes, and advise on legal implications of your offer terms.

Stage 5: Legal review and contract finalisation

Once your offer is accepted, the legal phase intensifies. Your property law professional will thoroughly review the Sale and Purchase Agreement , ensuring all terms protect your interests and comply with New Zealand property legislation.

This review process examines all contract conditions, settlement dates, and any special terms. Your lawyer works on your behalf to raise potential issues, negotiate modifications if necessary, and ensure you understand all obligations and rights under the agreement.

If your offer included conditions, you must satisfy these within specified timeframes. This might involve arranging finance approval, completing building inspections, or conducting additional legal searches. Failing to meet conditions by the deadline could result in losing your deposit and the property.

Stage 6: Pre-settlement preparation

As settlement approaches, several critical tasks require completion:

1. Your lender will require final property valuation, insurance confirmation, and various documentation before releasing funds.

2. Arrange comprehensive insurance coverage before settlement day. Most lenders mandate insurance as a loan condition, but adequate coverage protects your investment regardless of lending requirements.

3. Conduct a pre-settlement inspection to ensure the property remains in the agreed condition. Use your pre-settlement inspection to check that any included chattels (items included in the agreement) remain present,are in working order and that no damage has occurred since your offer was accepted.

Your property law team will coordinate with the vendor's lawyers, preparing settlement statements and ensuring all documentation is ready for the transfer.

Stage 7: Settlement day

This is when you will be on tenterhooks: settlement day represents the culmination of your property buying journey. The property lawyer coordinates with all parties to ensure the legal transfer occurs smoothly and you receive clear title to your new property. The settlement process involves multiple sequential steps between lawyers, banks, and other parties. Funds must be transferred, mortgages registered, and ownership officially transferred.

This complex choreography can take most of the day, with keys often not available until late afternoon. Plan to move in the day after settlement to avoid potential delays or complications that might arise during the transfer process, Weston Ward and Lascelles are always keen to make every stage of the house buying process

Stage 8: Post-settlement considerations

Your property journey doesn't end at settlement. Post-purchase considerations include setting up utilities, arranging ongoing maintenance, understanding your rates obligations, and potentially establishing structures like a New Zealand property trust for tax or estate planning purposes .

Consider reviewing your overall property portfolio and investment strategy, especially if this purchase forms part of a larger investment plan. Professional business advisory services can help optimise your property investments' tax efficiency and long-term growth potential.

Why choose Weston Ward and Lascelles legal support when you are buying a property?

Throughout every stage of property acquisition, qualified legal support proves invaluable. Property law NZ encompasses complex legislation, evolving regulations, and local considerations that can significantly impact your purchase.

Weston Ward and Lascelles are home to a highly experienced conveyancing team, who are with you every step of the way. From initial contract review through settlement and beyond, we offer essential guidance, risk mitigation, and peace of mind. With extensive local Christchurch property law knowledge, we help our clients navigate potential pitfalls, ensuring property purchase proceed smoothly and their interests remain protected.

Don't leave your property purchase to chance. Contact Weston Ward and Lascelles Christchurch property law team today to discuss your requirements and ensure your property buying journey is given the attention it deserves.

Relationship property and KiwiSaver: what happens if you split?

Wed, 28 May 2025 02:13:47 GMT

When relationships end, untangling your finances can feel overwhelming. If you're like most New Zealanders, your KiwiSaver account likely represents one of your largest assets – but what happens to those retirement savings when you separate? Understanding how KiwiSaver is treated in relationship property settlements is crucial for protecting your financial future.

What is relationship property?

In New Zealand law, relationship property refers to all the assets and debts that are shared between partners in a marriage, civil union, or de facto relationship, which may be divided if the relationship ends—either through separation or death.

The laws around relationship property are governed by the Property (Relationships) Act 1976. The main principle is that when a qualifying relationship ends, all relationship property should be divided equally, unless there are exceptional circumstances.

What seems like a simple 50/50 split can involve complex calculations, tax considerations, and strategic decisions that affect your long-term financial security. However, navigating KiwiSaver in relationship property settlements requires a relationship property lawyer who has expertise in both relationship law and financial planning.

Is KiwiSaver relationship property?

Under New Zealand's Property (Relationships) Act 1976, KiwiSaver funds are generally considered relationship property if they were accumulated during your relationship. This means they're subject to equal sharing between partners, regardless of who earned the money or whose name is on the account.

However, there are important exceptions. Any KiwiSaver contributions made before your relationship began remain your separate property. The challenge lies in determining exactly how much was contributed before and during the relationship – particularly if you've been together for many years.

Can KiwiSaver be split between partners?

Yes, KiwiSaver can be split, but it's not as straightforward as dividing a bank account. The relationship property portion of your KiwiSaver can be shared equally between you and your former partner through several methods:

Direct transfer

In some cases, KiwiSaver providers can transfer funds directly from one partner's account to the other's. This maintains the tax-advantaged status of the funds and keeps them locked until retirement age or qualifying circumstances.

Advantage : Direct transfers preserve the retirement savings purpose of KiwiSaver funds. Both parties retain their retirement nest eggs without compromising long-term financial security or losing valuable tax advantages.

Disadvantage : Direct transfers require formal Family Court orders which incurs legal and court fees. The process is administratively complex to the point some providers don't allow it, and funds remain inaccessible until retirement. This creates immediate financial pressure if either party needs cash now.

Withdrawal of the funds is also an option- it also requires Family Court orders.

Compensation through other assets

More commonly, couples offset the KiwiSaver imbalance against other relationship property. For example, if you have $50,000 more in KiwiSaver than your partner, you might receive $25,000 less from the sale of the family home to balance things out.

Advantage : Offsetting through other assets avoids court applications and legal fees while allowing both parties to keep their KiwiSaver intact. It's flexible, faster to implement, and maintains retirement savings for both partners. This approach preserves long-term financial security without administrative complexity.

Disadvantage : Offsetting requires sufficient other assets to balance the equation. If one partner has significantly more KiwiSaver funds, finding equivalent assets to offset can be impossible. This approach may also force the sale of assets like the family home when keeping it might be preferable in the long term.

Legal considerations and complexities of splitting a KiwiSaver

Splitting a KiwiSaver account during a relationship separation involves several legal complexities that require careful consideration. One of the primary challenges lies in accurately valuing the portion of the KiwiSaver that qualifies as relationship property. This process demands a thorough analysis of each partner’s contribution history, including employer and government contributions, as well as any investment gains or losses that occurred during the relationship.

The potential tax implications also require investigation. Unlike many other types of relationship property, KiwiSaver transfers can carry significant tax consequences if not managed correctly. Engaging legal and financial experts is essential to avoid creating unexpected tax liabilities that could impact both parties. This is when the head needs to rule, rather than the heart – it’s important to recognise the best way to split a Kiwisaver may feel counterintuitive but the best Christchurch lawyers will have crunched the numbers to the nth degree to protect your future position. Seeking professional legal advice can help to structure settlements in a way to minimise disruption of your financial health.

Timing is another critical factor. Processing a KiwiSaver settlement can take several months, especially when providers must forensically calculate intricate apportionments. These delays can have a knock-on effect, slowing down the overall property settlement and potentially increasing legal expenses if not proactively addressed.

Other influences Kiwisaver settlements

First-home buyers : if you've used KiwiSaver funds for a first-home purchase , this can complicate property settlements. The withdrawn amounts may still be considered relationship property that needs to be accounted for in any division.

Property investors : those with investment property portfolios need to consider how KiwiSaver settlements interact with their broader property strategy. It can make more sense to restructure property holdings rather than access KiwiSaver funds directly.

Business owners : if you own a business, KiwiSaver settlements might impact your ability to maintain and support commercial and business operations or funding.

Moving forward with Weston Ward and Lascelles

Whether you're facing an amicable separation or dealing with contested litigation, getting the KiwiSaver component of your property settlement right is essential. The decisions you make now will impact your retirement security for decades to come.

Don't let the complexity of KiwiSaver settlements overwhelm you or derail your property settlement negotiations. With proper legal guidance, you can protect your interests while reaching a fair resolution that allows both parties to move forward.

At Weston Ward and Lascelles, our experienced family law team understands the intricacies of relationship property law in Christchurch and throughout New Zealand. We provide comprehensive legal advice on all aspects of property settlements, from KiwiSaver splitting to complex property conveyancing and trust structures.

Don't navigate this challenging time alone. Contact us today to book a consultation and ensure your property settlement protects your long-term interests. Call 03 379 1740 to book your appointment today.

Incorporated Societies must re-register by April 2026 – What you need to know

Fri, 09 May 2025 02:13:34 GMT

If your organisation is an incorporated society in New Zealand, recent legislative changes mean it’s time to take action. Under the Incorporated Societies Act 2022, all incorporated societies (incorporated under the 1908 Act) must re-register with the Companies Office by 5 April 2026 or face automatic deregistration .

At Weston Ward & Lascelles Ltd, we have been advising organisations and individuals in Christchurch for over 140 years. This article outlines what the law changes mean, what steps your society needs to take, and how our team can help.

Overview of the Incorporated Societies Act 2022

The Incorporated Societies Act 2022 replaces the previous legislation, which dated back to 1908. It introduces modern governance standards, clearer officer responsibilities, and more rigorous compliance expectations. The new Act is designed to strengthen transparency, accountability, and the long-term viability of incorporated societies in New Zealand.

Even if your society has been operating for many years, you must re-register under the new Act to maintain legal status.

Why re-registration is required

Under the 2022 Act, every existing incorporated society must apply to re-register . This includes submitting an updated constitution that complies with the new legislation and ensuring that governance structures and officer duties are clearly defined.

Deadline:

All incorporated societies must re-register by 5 April 2026 . Failure to do so will result in deregistration and loss of legal status.

Key changes introduced by the new act

Mandatory Re-Registration
Re-registration with the Companies Office is required, along with an updated constitution that aligns with the new legal framework.

Updated Constitution Requirements
Societies must now include clauses around dispute resolution, officer duties, financial management, and meeting procedures. A legal review of your constitution is strongly advised to ensure compliance.

Officer Duties and Conflict Management
Officers now have explicit obligations under the new Act, including acting in good faith, disclosing conflicts of interest, and prioritising the society’s interests.

Annual Reporting and Dispute Resolution
Societies must meet new requirements for annual financial reporting and implement transparent mechanisms for resolving internal disputes.

What happens if you don’t re-register?

If your organisation does not re-register by the deadline:

It will be automatically removed from the register of incorporated societies.

It will lose its legal status and the ability to enter contracts or hold property.

Access to funding, grants, and charitable status will be lost.

The re-registration process is not instantaneous—early preparation is key to maintaining compliance.

How Weston Ward & Lascelles Ltd can help

Our team offers end-to-end legal support for incorporated societies needing to re-register under the new Act. Services include:

Assessing whether being an incorporated society is still the best legal structure for you

Reviewing and updating your constitution

Providing advice tailored to your society’s structure and purpose

Assisting with compliance documentation

Supporting your governance team with legal insights

We’ve supported a wide range of societies in Christchurch, from small community groups to national organisations.

Who needs to take action?

The new legislation affects all incorporated societies, including but not limited to:

Sporting clubs

Community and cultural groups

Charities

Professional associations

If your group is listed on the Incorporated Societies Register, you are required to comply.

Why early action matters

The Companies Office has opened a transition period to allow societies to re-register. Starting now gives your committee time to:

Consult members on constitution changes

Seek legal advice

Implement governance updates

Waiting until 2026 may leave little room for delays, missed steps, or approvals.

Why choose Weston Ward & Lascelles Ltd

Trusted Experience : Over 140 years supporting Christchurch organisations.

Tailored Legal Advice : We adapt our approach to meet your society’s unique needs.

Full-Service Support : From constitution drafting to officer compliance guidance, we’re here for every step.

Get in touch

If you need help navigating the new requirements under the Incorporated Societies Act 2022, contact Weston Ward & Lascelles Ltd today.

Phone : 03 379 1740

Email : djh@wwl.co.nz

Address : 1/10 Leslie Hills Drive, Riccarton, Christchurch

Let us help ensure your society remains compliant, protected, and well-positioned for the future.

Can I break/get out of my commercial lease?

Wed, 09 Apr 2025 04:05:19 GMT

There's a host of reasons why tenants need to get out of a commercial lease. Historically breaks from a commercial lease were due to changes in financial circumstances or changing business needs, perhaps due to growth or a change in operations. But with the cloud and the increased use of tech coupled with economic slow down some businesses have revised their working practices and no longer require a traditional office setup and as much space.

Ending a business lease early is not simply a case of giving notice. By signing a commercial lease agreement, you have entered a legally binding contract . If either party breaches the contract, they can be sued. Courts have the power to award damages or enforce the contract, so it's important the correct processes are followed to avoid litigation.

Review the commercial lease agreement

The process of terminating a property lease starts where it all began – with the signed lease. A landlord is not obligated to accept a surrender request, so be prepared to negotiate with the landlord or agent. If there is no break clause, you may have to buy out the remaining term of the lease, sublet to a third party, or assign the lease.

Subletting the lease

In some circumstances subletting part or the whole premises is a good solution to reduce costs. The landlord's permission needs to be sought but the legal relationship is between you and the additional tenant. Always draw up a sublease contract between you and the subletter and remember you remain bound by the landlord's lease.

Assigning the lease

This is when you transfer the lease to a new party. They will be bound by the same obligations as per your contract, but a new legal relationship is created with the landlord which can include new terms. Landlord consent is still required, but most cannot unreasonably withhold that. You must realise, unless negotiated otherwise, if the new tenant defaults on rent you are liable.

Weston Ward & Lascelles Ltd are Christchurch NZ business and property lawyers, who can help with your lease issues.

Navigating commercial lease disputes

When commercial lease disputes arise, early professional intervention can save significant time and expense. Our business and property law service teams in Christchurch are experienced and efficient in resolving commercial tenancy issues before they escalate.

The Christchurch commercial property market has unique considerations, particularly post-earthquake, where building code compliance and structural integrity remain ongoing concerns. Our business advisory services include assessment of lease obligations related to building maintenance, seismic strengthening responsibilities, and insurance requirements.

For tenants facing financial hardship, our business and property law NZ teams can negotiate temporary rent reductions, payment plans, or lease restructuring with landlords. These negotiations require skilled mediation and a thorough understanding of both property law and business realities – precisely the intersection where our firm excels.

Commercial lease agreement essentials

A well-drafted commercial lease is your first line of defence against future complications. Our business and property solutions NZ teams recommends including these critical provisions in any commercial agreement:

Detailed exit clauses : beyond standard break clauses, consider negotiating specific exit conditions tied to business performance metrics or external market conditions.

Dispute resolution mechanisms : structured processes for addressing disagreements can prevent costly litigation NZ proceedings.

Maintenance responsibilities : clear delineation of tenant versus landlord obligations regarding repairs and maintenance helps avoid common disputes.

Rent review provisions : transparent formulas for calculating future rent increases provide certainty for business planning.

Force majeure clauses : recent events have highlighted the importance of provisions addressing unforeseeable circumstances that may impact business operations.

Fitout clauses : anything attached to the premises becomes at law part of the property and subject to rent review. So if you are paying for work these need to be excluded from the review.

Our business and property conveyancing Christchurch teams can review existing leases to identify potential vulnerabilities or draft new agreements that protect your interests while maintaining balanced landlord-tenant relationships.

Commercial tenancy during business restructuring

For companies undergoing restructuring, merger, or acquisition, commercial lease obligations require special consideration. Our business consulting services include strategic advice on managing property obligations during corporate transitions. This might involve:

Negotiating lease transfers as part of business sales.

Consolidating multiple leases following merger activities.

Restructuring lease arrangements during business downsizing.

In these complex scenarios, coordinated advice from both our property law in Christchurch and business law teams ensures all legal implications are properly addressed.

Proactive commercial lease management

Rather than waiting for problems to arise, forward-thinking businesses engage business and property lawyers for regular lease reviews and strategic planning. This proactive approach identifies opportunities for:

Renegotiating favourable terms before renewal deadlines.

Addressing potential compliance issues before they trigger defaults.

Planning premises requirements to align with business growth projections.

Structuring leases through New Zealand property trust arrangements for tax or succession planning advantages.

Businesses with proactive lease management strategies face significantly fewer commercial property disputes and enjoy greater flexibility when business needs change.

Legal support when you need it most

Commercial property matters often criss-cross with other legal areas, including relationship law, employment trusts, financing, guarantees, shareholder agreements, structures, tax and occasionally civil litigation.

At Weston Ward and Lascelles Ltd, our clients benefit from the seamless support across all the disciplines . This ensures you receive comprehensive advice that addresses both immediate lease concerns and broader business implications without delay.

If you need legal services because you have an existing agreement and wish to break the commercial lease, contact Weston Ward Lascelles today for a chat. Our commercial property business lawyers Christchurch teams will assess your situation, explain your options, and develop a strategic approach tailored to your specific business needs. Call 03 379 1740 and take the first step toward resolving your commercial lease challenges.

A mortgagee sale: what does it mean for you?

Wed, 05 Mar 2025 23:53:12 GMT

The property market in Christchurch is, let’s say, buoyant. In comparison with other cities in New Zealand, Christchurch is bucking the trend as house prices have risen significantly compared to pre-Covid levels. But there’s also been high interest rates since May 2023 which has seen many households face financial strain – the perfect breeding ground for mortgage arrears and mortgagee sales.

Understanding a mortgagee sale

A mortgagee sale occurs when a lender (the mortgagee) sells a property to recover funds from a borrower (the mortgagor) who has defaulted on their loan . Defaults occur in several ways, such as failing to make repayments, missing interest payments, or not maintaining or insuring the property as stipulated in the loan agreement.

Lenders are typically keen to sell the property swiftly – they want their money back, and so a mortgagee sale can be a great opportunity for people buying a house in Christchurch to purchase a house below its true market value. But before you rub your hands in glee, a mortgagee sale brings with it a host of risks and issues that are not present in ‘regular’ transactions.

The risks of a mortgagee sale

Navigating the complexities of a mortgagee sale can be challenging, particularly for those unfamiliar with the legal and financial implications. If you are considering buying a mortgagee sale property, it cannot be overstated the importance of seeking legal advice from an experienced property conveyancing Christchurch lawyer before signing a sale and purchase agreement or bidding on a property at auction. These sales are often problematic from the outset so its important you understand what a mortgagee sale entails, the steps involved, and how seeking professional legal advice can help mitigate risks and protect your interests.

The most obvious issue is that the owner isn’t the seller. While this sounds like a minor administration issue, the impact on the sale is significant. Aside from the owner being resistant to the sale, mortgagee sales have very different terms and conditions to non-mortgagee sales:

Property owners can feel the agents are not trying to get the best price and engage their own agents to make a sale, which can complicate and delay a purchase.

The owner may still be living at the property so you may need to go to court for a possession order.

The owner may still be living at the property and not allow viewings, a pre-settlement inspection or confirm whether any works have been undertaken.

The mortgagee does not have to provide information or supporting documentation for building consents or code compliance certificates, or confirm boundaries

The mortgagee does not have to guarantee the property will be vacant on settlement.

The mortgagee is not liable for the condition of the property.

Chattels are not included in the sale, and if there are any left in the property, they are ‘as is, where is’.

The mortgagee can surrender responsibility for the property after you’ve signed the sale and purchase agreement, so you will need to insure the property from this date.

Buyers can be liable for outstanding body corporate fees, rates or other payments.

Mortgagee sales often proceed quickly, but the lenders can cancel the agreement at any time prior to settlement, plus if the property owner restores their finances in time, they can take the property off the market.

Why you need legal advice for a mortgagee sale

Buying a property through a mortgagee sale offers the potential for significant savings, but it’s not without its challenges. These transactions are far from straightforward and often come with risks that can catch buyers off guard. Engaging an experienced property lawyer is essential to navigate these complexities and safeguard your investment. Here's why legal advice is critical in a mortgagee sale:

1. Comprehensive due diligence

A Weston Ward and Lascelles lawyer can perform thorough due diligence, ensuring you fully understand the property and its associated risks before committing to a purchase. They will:

Investigate the property’s legal title to uncover any encumbrances or liens.

Check for outstanding rates, body corporate fees, or other obligations that could become your responsibility.

Confirm whether the mortgagee has the legal right to sell the property and if proper procedures under the Property Law Act 2007 have been followed.

2. Clarifying sale terms

Mortgagee sale agreements differ significantly from standard sale agreements. Your conveyancing lawyer will explain these terms, including the lack of warranties, the “as is, where is” condition, and the absence of guarantees about property condition, chattels, or vacant possession.

3. Mitigating risks

Legal advice ensures you are prepared for potential pitfalls, such as disputes with the current occupants or liability for damage during the "danger period" before settlement. Our Christchurch lawyers also help secure insurance from the date the agreement becomes unconditional to protect your interests.

4. Navigating practical challenges

Issues like restricted access to the property for inspections or valuations can create hurdles in securing finance or assessing the property’s condition. A lawyer will offer solutions to address these challenges and negotiate on your behalf when necessary.

5. Managing speed and uncertainty

Mortgagee sales move quickly, leaving little room for error. Weston Ward and Lascelles’ highly skilled lawyers in property law NZ and conveyancing Christchurch ensure you stay on track with tight deadlines while addressing unexpected complications, such as the lender withdrawing the sale or the owner regaining financial control.

A mortgagee sale is a complex process with significant implications for all parties involved, but we are with you every step of the way. While the potential for savings is enticing, these sales require careful navigation to ensure you are not caught off guard by unexpected complications or liabilities. From handling unclear property conditions to conducting thorough due diligence and sudden withdrawals, our team provides the clarity and support needed to make informed decisions.

Remember, engaging legal advice early on is not just a precaution—it’s an investment in your peace of mind. Contact Weston Ward and Lascelles today at 03 379 1740 for expert assistance with your mortgagee sale. Let us help you turn a potentially challenging transaction into a successful outcome.

New Year life admin: today’s small tasks, tomorrow’s big problems

Fri, 17 Jan 2025 01:52:00 GMT

⚠️ Update: This article is from 2025. Looking for the latest legal guide? Read our new [ 2026 Legal Audit & Checklist ] for updated laws on Trusts, Wills, and Digital Assets.

Have you ever had to organise a family holiday? It requires A-grade planning and coordination. The destination must suit everyone’s interests, with accommodation and transport options researched and reserved; passports and travel insurance kept up to date; flights, excursions, airport transfers and medications checked and paid for to ensure a smooth trip.

Yet, how many people show this level of commitment to their life admin?

Admittedly, checking your paperwork and legal documents to ensure they are up to date is not the most exciting task, but planning for the future is one of the most responsible actions you can take for yourself, your family, and your business. Outdated or inaccurate documents can lead to significant, long-term complications, both financially and emotionally.

Outdated wills, trusts, or powers of attorney may not reflect your current wishes, causing family disputes or legal challenges over inheritance or decision-making authority.

If life changes like marriage, divorce, or the birth of children aren't reflected in your documents, assets may go to unintended individuals, leaving loved ones unprotected.

Without up-to-date tax planning, your estate could face unnecessary tax burdens or penalties, reducing the value passed on to beneficiaries.

Inaccurate documents can lead to lengthy litigation, contested wills, and failed succession planning for businesses, resulting in high stress and significant legal fees.

Changes in laws or personal circumstances can render documents legally unenforceable, leaving you without crucial protections or powers in place when they’re needed most. As a Christchurch law firm, Weston Ward and Lascelles provide legal services to make sure your needs are met with care, clarity, and professionalism. Whether you're preparing for the inevitable or simply securing your financial and legal affairs, having the right documents in place is essential to ensuring peace of mind. Working with a legal advisor can make all the difference.

1. Will power: where there’s a Will there’s a way

One of the most important documents for anyone to have is a valid will. A will outlines how your assets will be distributed after your death, who will act as your executor, and any specific wishes you have for your estate. Without a will, your estate may be subjected to the complexities of intestate laws which might not align with your preferences, and can result in delays, higher costs, and potential family disputes.

It's recommended to review your will every few years or after any major life changes, so it reflects your current wishes. Significant events such as getting married, dissolution, or separated, having a child or grandchild, moving house, or the death of an executor or beneficiary are key moments to revisit your will.

Even if your circumstances haven’t changed, it’s important for estate planning lawyers to review your will periodically, as values, priorities, and relationships evolve over time, but so do tax rules. Consulting with a family trust lawyer ensures your will aligns with current tax regulations.

2. Power of Attorney – planning for the unexpected

It's an uncomfortable topic, but if something unexpected happens, someone you trust must have the legal authority to manage your property and finances. This includes making decisions about selling your house, accessing bank accounts, managing investments, paying bills, and overseeing any businesses you own.

A Power of Attorney (PoA) allows someone you trust to make decisions on your behalf should you become incapacitated or unable to make decisions for yourself. There are two main types of PoA in New Zealand: an enduring power of attorney for property, and an enduring power of attorney for personal care and welfare.

3. Trust issues – securing your legacy

Whether you’re protecting family wealth, managing business assets, or planning for future generations, a trust provides flexibility and security that few other estate planning tools can match. Setting up a trust requires careful legal guidance to ensure it complies with current legislation and operates smoothly.

By setting up a New Zealand trust, assets can be secured from potential legal disputes and ensure your beneficiaries receive what you intended. Family trusts are particularly valuable for individuals with complex estates or those who wish to maintain privacy in their financial affairs. If you have established a trust to manage your property, business, or other assets, it’s crucial to ensure all trust documents are updated and in order.

4. Understanding Relationship Property Law – breaking up without breaking down

The holiday season is here, accompanied by an increase in failed relationships. If your relationship is decidedly on the rocks, its crucial you understand relationship property law and what your rights and obligations are to ensure a fair outcome for both parties. Relationship property law NZ governs how property, debts, and assets are shared between partners, so any decision made can significantly impact your financial future.

Whether you’re entering into a relationship but want to secure your assets with a prenuptial agreement or are ending one, understanding how assets will be divided is key to protecting your interests. Weston Ward and Lascelles offer expert advice in relationship property law in Christchurch, ensuring your rights are upheld and assets fairly distributed.

5. Mind your business – securing your company’s future

For business owners, protecting your business assets and ensuring legal safeguards is just as crucial as personal estate planning. It's vital to document your business’s legal structure, ownership details, and potential risks. This involves regularly reviewing shareholder agreements, partnership contracts, succession plans, and operational procedures. As your business grows and evolves, seeking legal advice ensures these documents stay up-to-date, reducing risks and helping to secure long-term stability.

Navigate the events of life with the best legal advice in Christchurch

Taking steps now to get your affairs in order is one of the best gifts you can give yourself for 2025. By working with a reputable and experienced law firm, you can navigate the complexities of New Zealand’s laws and protect yourself from all eventualities. For those interested in securing their future, book an appointment with Weston Ward and Lascelles. Contact us today to schedule your first consultation and get started on putting your affairs in order, call 03 379 1740 or click here .

Do grandparents have rights to see children?

Wed, 27 Nov 2024 03:37:12 GMT

Becoming a grandparent is certainly a milestone, and a very special one at that. For many, it’s a chance to enjoy the best parts of parenting without the daily responsibilities. This can mean weekend visits, babysitting duties, trips to the library and feeding the ducks. Yet, life doesn’t always follow the ideal script.

Even in the best of times, families are complex. Throw in the mix of a busy life, work, relationship breakdowns , and you see how fragile the ecosystem of a family truly is and how communication with one another can be stretched to breaking point. When families fall out, the ripple effect goes beyond the main players and impacts the dynamics of the whole family.

For grandparents, these challenges can result in the heartbreaking situation of losing regular contact with their grandchildren and being excluded from their lives. Common reasons for this alienation include:

Disputes between grandparents and their own children or in-laws.

Parental separation or divorce .

Geographical relocation of the family.

A breakdown of trust or communication within the family.

What does New Zealand law say about grandparents' rights?

Even though it is widely recognised how grandparents often play an essential and profound role in the lives of their grandchildren, (continuity, stability, and a unique familial bond), in New Zealand, the legal framework doesn’t automatically grant grandparents the right to see their grandchildren. This is further hindered by only parents or guardians being able to make an application for a Court Order.

However, the law does provide a pathway for grandparents to apply for contact arrangements through the Family Court. It is essential to obtain legal advice from experienced family lawyers as soon as you recognise there is a potential problem. For example, if you have a relationship with one of the parents, there may be an opportunity to include your contact within their Parenting Agreement/Order. Seeking legal advice prevents issues escalating and gives you guidance on how to navigate the circumstances and decrease distress.

Mediation: an essential first step

Before going to court, mediation is required to try and reach a satisfactory outcome for all parties involved. Family Dispute Resolution (FDR) is a type of mediation designed to promote the core principles of the Care of Children Act 2004:

The child's welfare and best interests are the primary consideration in all matters.

The child's views should be considered.

Decisions affecting the child should be made within a time frame appropriate to the child's sense of time.

Parents and guardians are primarily responsible for the child's care, development, and upbringing.

Parents, guardians, and others involved in the child's care should consult and cooperate with each other.

The child's care, development, and upbringing should be continuous.

The child’s relationship with his or her whanau (including grandparents) should be preserved and strengthened.

The child’s identity, including culture, language, and religious denomination and practice should be preserved and strengthened.

How Family Dispute Resolution can help

FDR aims to resolve disputes amicably, enabling agreement without the emotional and financial cost of litigation . Overseen by a qualified mediator often with legal or counselling experience, FDR provides a structured, informal environment to focus on the child’s best interests.

Get to the core of the issues between the parties.

Facilitate discussions in respect of those matters and consider different options.

Help the parties reach an agreement that serves the welfare and best interests of the children.

While family lawyers don’t attend FDR sessions, agreements reached through FDR can later be challenged in the Family Court if issues persist. It’s important to note that costs for FDR depend on income. Low-income individuals may qualify for free services, while others may pay for a government-funded mediator. Independent mediators may charge different fees. Weston Ward and Lascelles are family law mediators in Christchurch.

Can grandparents apply for contact through the family court?

If mediation fails, making an application to the Family Court becomes the next step. While it’s a formal process, the Court’s primary concern is always the child’s welfare and adherence to the Care of Children Act 2004. Remember, FDR is a compulsory pre-requisite to making an application, but permission also needs to be sought from the court to apply for contact and a Court Order. At this stage the Court evaluates:

The nature of the relationship : how close is the bond between the grandparent and the grandchild?

The child’s best interests : does maintaining or re-establishing the relationship benefit the child?

Potential harm : would the contact have any negative impact on the child’s well-being?

Once permission is granted, grandparents can file for contact in a Parenting Order. This specifies when and how the grandparent can spend time with their grandchild. Court decisions can vary widely, from granting regular contact to approving one-off visits for special occasions. In some cases, the Court may decide that contact isn’t in the child’s best interest, particularly if the family conflict is severe or ongoing . Your family lawyer in Christchurch will advise you on most likely outcomes before the hearing.

5 Practical tips for grandparents seeking contact

1. Communicate openly : reach out to your children or their partners to express your desire to remain involved in your grandchildren’s lives. Frame the conversation around the child’s well-being rather than your own feelings.

2. Remain neutral : keep focused on the children’s needs and avoid actions or comments that might deepen divisions within the family.

3. Offer mediation : suggest a neutral meeting facilitated by a trained mediator. This shows you’re committed to finding an amicable solution.

4. Document your efforts : keep a dated record of your attempts to resolve the situation, including letters, messages, or offers of mediation.

5. Seek legal advice : grandparent family law advice in New Zealand is crucial for understanding your rights and the best course of action. Weston Ward and Lascelles family law firms in Christchurch have experience in grandparents’ rights and can guide you through the process.

Grandparents' legal rights in a changing landscape

While grandparents in New Zealand don’t have an automatic right to see their grandchildren, societal recognition of their importance is growing. Advocacy for better legal protections is increasing, particularly as the number of blended and separated families continues to rise.

Not seeing your grandchildren can be an isolating and distressing experience, but it’s important to remember that options are available. Whether through mediation or the Family Court, grandparents do successfully regain contact and rebuild meaningful relationships with their grandchildren. The key is to approach the situation calmly, seek expert family law advice, and always prioritise the child’s best interests. By doing so, you increase your chances of reaching a positive outcome that benefits everyone involved.

If you’re a grandparent facing this issue, contact Weston Ward and Lascelles’ Christchurch family lawyers. Understanding your legal rights and taking proactive steps can make all the difference in reuniting with your grandchildren. Our family lawyers are committed and supportive, using their wealth of experience and advocacy supporting clients through family law disputes. Call 03 379 1740 or click here to arrange a confidential, no obligation chat, to see how we can help you.

Home for the holidays: How to navigate conveyancing at Christmas

Tue, 12 Nov 2024 22:26:29 GMT

The festive season is nearly here, bringing with it a sense of joy, celebration, and yuletide spirit. For some people, December is also bringing with it the hope of completing on a property. Whether you're a first home buyer or an experienced property owner, the timing of your property transactions can significantly impact the process.

In this article, Weston Ward and Lascelles’ Christchurch conveyancing lawyers explore the implications and key considerations when dealing with property matters during the Christmas period.

Understanding working days – timeframes in Agreements for Sale & Purchase of Real Estate

With relevance to the Christmas holiday break, a ‘working day’ is defined in a standard Agreement for Sale and Purchase of Real Estate to not include a day in the period commencing with 24 December in a year and ending with 5 January in the following year, both of those dates inclusive. Saturdays and Sundays also don’t count as working days.

For 2025, the first day that will count as a working day for a standard real estate contract will be Monday 6 January 2025. Many lawyers do not reopen from the Christmas holidays until Monday 13 January 2025, or later. So, there is often a requirement for lawyers to finesse a contract confirmation date or settlement date that falls prior to their office reopening from the Christmas holiday festivities.

It’s essential to be aware that confirming a contract condition or settling a property sale / purchase is not going to be possible until the law firm has reopened.

The conveyancing process is reliant on defined working days, here are some examples of how timeframes can impact conveyancing an issue:

Condition confirmation detailed in the Agreement for Sale and Purchase is pushed out too close to the settlement day.
Money from the lender is inaccessible resulting in insufficient funds being available settlement day. For example, KiwiSaver or Kāinga Ora grants or loans can sometimes require 15 working days between application and fund disbursement.
Inability to organise and present a Certificate of Insurance before settlement.
LIM reports ought to be requested no later than 5 working days after the date of the Agreement.
A vendor has a set amount of time from being served with a notice from a purchaser seeking compensation to dispute a compensation claim from a purchaser.

Whether you have signed a Sale and Purchase Agreement or about to, it’s crucial you seek legal advice, especially this close to the holiday season. Legal professionals from the property team at Christchurch’s Weston Ward and Lascelles, will guide you through the intricacies of the Agreement to ensure the specified timeframes can be met. If the dates are not realistic, the property lawyers negotiate more achievable terms to avoid any challenges and uncertainties associated with the property transaction.

Third party involvement

There are always a number of delays that can affect any house sale or purchase that are out of the hands of even the best property lawyers. There may be complex matters raised during the conveyancing process that require the input from third parties, but with a higher likelihood of annual leave being taken during the holiday period, there can be delays in paperwork or reports needed for completion.

How to avoid Christmas conveyancing stress

Note, this advice is not exclusively for the holiday season, it’s for year-round conveyancing. Whether you're a first home buyer or a seasoned property owner, seeking professional property legal advice as soon as possible makes the process smoother and more efficient (time and money wise).

Your conveyancing lawyer manages the whole process and gets your ducks in a row. From making sure you don’t get caught out by the nuances of working days, explaining and confirming your legal obligations, ensuring you make the best mortgage decisions, to legal advice about how to protect your assets .

To make an appointment with one of Weston Ward and Lascelles’ Christchurch property lawyers, call 03 379 1740 or email enquiry@wwl.co.nz to. We champion transparency and diligence to make the purchase or sale of your home a smooth transaction that meets your expectations.

Love thy neighbour: property disputes and how to tackle them

Sun, 10 Nov 2024 22:35:57 GMT

In an ideal world, neighbours live side by side in perfect harmony, sharing a mutual respect for boundaries, both physical and personal. However, the reality is often far from this ideal. Property disputes between neighbours are common, ranging from minor inconveniences to full-blown legal battles.

These disputes can disrupt not only your peace of mind but also the value of your property and your relationship with the community. If you're facing a property dispute, it’s essential to understand the nature of these conflicts and how to resolve them effectively. In New Zealand, the law provides various avenues for resolving these issues, but navigating the legalities can be complex. That’s where Weston Ward and Lascelles come in—providing quality property law advice to guide you through to a solution.

Common property disputes in New Zealand

Property disputes between neighbours arise from a variety of situations, each requiring a different solution. It’s important to understand the nature and history of your issue to identify the best way to approach it; court and civil litigation is very rarely the first course of action.

Boundary disputes

Boundary disputes are perhaps the most common and unpleasant type of neighbour conflict. These disputes arise when the physical boundaries between properties are unclear or contested. There is a common myth that neighbours must pay 50% of the costs of a new boundary fence or share the costs of repairs to an existing boundary fence which often fuels misunderstandings.

It’s advisable to seek legal advice early before the dispute escalates out of control, as these cases often do. Weston Ward and Lascelles’ property lawyers will help you understand the property titles, plans, legal boundaries and any other legal entity that impacts your property. It is very easy to get into a dispute with your neighbour if you (or they) don’t fully understand the legal position and have follow the incorrect procedures. Once the boundaries are confirmed, your property lawyer can give you tailored legal advice on how best to proceed.

Noise complaints

Noise is another frequent source of contention between neighbours. From loud music, barking dogs, or anti-social construction noise, excessive noise invariably leads to significant friction. The term “excessive noise” is any noise that is under human control and unreasonably interferes with the peace, comfort, and convenience of any other person. The Resource Management Act (RMA) requires that noise on any property doesn't exceed reasonable levels. Christchurch City Council manages noise complaints , and if a noise control officer finds the noise excessive, they can issue a 72-hour directive to reduce it. If ignored, they can seize or disable the noise-making equipment.

It's worth noting that if your noisy neighbours are tenants, the landlord should be your first port of call, as tenancy agreements should have a clause that refers to behaviour and not disturbing the peace of others. People are more open to modifying their behaviour when their tenancy is at risk.

Encroachments

When you buy a property, it's common to assume that the fence marks the boundary and that the garage is entirely within your property lines. However, this isn't always the case.

Encroachments occur when one property owner builds something, such as a fence, shed, or driveway, that crosses the boundary into the neighbouring property. They often go unnoticed until specific events, like a land subdivision , a building project requiring consent, or house sale bring them to light. The current property owner is legally responsible for any encroachment, regardless of who originally built the structure or fence.

Access disputes : shared driveways or pathways, especially when one neighbour restricts access or damages a shared path.
Nuisance claims : overhanging trees to water runoff that damages a neighbour’s property.
Land use conflicts : objections to home based businesses, rental properties, or structures that block views or sunlight.

While you may be able to negotiate with your neighbour to buy or sell the land the structure is on, a subdivision consent would be required to adjust the boundary. If talks don’t go to plan, an application can be made to the Court under the Property Law Act 2007 for an equitable remedy. The Court can:

Grant an easement over the affected land.
Grant the owner of the land the right of possession of the structure.
Order the structure to be removed.
Order reasonable compensation to be paid to the owner of the land.
Order the land be assigned to the owner of the structure.

The role of WWL Christchurch property lawyers in property disputes

Navigating a property dispute can be stressful, particularly if you’re not familiar with the legal processes involved. At Weston Ward and Lascelles, we understand the emotional and financial strain these disputes cause. That’s why we’re committed to providing comprehensive legal services tailored to your unique circumstances.

Expertise in property law : as leading property and conveyancing lawyers in Christchurch our team has extensive experience in New Zealand property law and working with the various councils of Canterbury. With a wealth of local knowledge including zoning and regulations we cut to the chase, not only saving you time and money but delivering the best possible legal outcome too.
Personalised approach : every property dispute is unique, so we ensure we understand the details of your specific situation, including the history of the dispute and your goals for resolution before we develop a strategy for a solution.
Cost-effective solutions : legal disputes can be expensive, but we identify and deliver cost-effective solutions that align with your budget. We’re always transparent about costs and work with clients to find the most efficient way to resolve your dispute. We will never pursue litigation if it is not in your best interest.
Strong advocacy : whether through mediation, tribunals, or court proceedings, our Christchurch property lawyers are committed to advocating for your rights. We’ll help you navigate the legal process, ensuring your case is presented clearly and effectively.
Peace of mind : Ultimately, our goal is to help you resolve your dispute in a way that allows you to move forward with peace of mind. We’ll handle the legal complexities so you can focus on maintaining your home and your relationships.

Resolving property disputes can be a delicate process. The first step is always to try to resolve the issue amicably. Open communication and a willingness to compromise can often prevent a minor issue from becoming a legal battle. However, when discussions break down, or the issue is too significant to resolve informally, it is time to seek legal advice.

Whether you’re dealing with a boundary issue, noise complaint, or any other type of property dispute, the key is to act early and seek expert legal advice when necessary. Weston Ward and Lascelles are here to protect your property and rights and resolve the dispute as smoothly as possible. Contact us today to see how we can assist you.

Should a lawyer review the Sale and Purchase Agreement? Buyer beware!

Sun, 10 Nov 2024 22:25:22 GMT

It’s second nature for those involved in business to engage a lawyer experienced in business and commercial law for business advisory services. Whether it’s for a startup or an established organisation, contract reviews are a valued and expected expense to ensure the terms and conditions are fair, accurate and aligned with the client’s best interests. Yet, this same level of diligence and self-protection is often neglected in personal matters, including buying a property.

With rising property prices, unstable mortgage rates and unemployment rates expected to hit 5% by the end of the year, spending more money to complete a house purchase is likely the last thing you want to think about. However, and this is a huge however, engaging a Christchurch property lawyer to review the Sale and Purchase Agreement before signing is a wise investment; it is a strategic move that can save you from significant future complications.

Weston Ward and Lascelles are leading property and conveyancing lawyers in Christchurch who help clients buy properties. From first home buyers to clients with multiple properties, our advice is always the same: do not sign on the dotted line until the Sale and Purchase Agreement has been reviewed, and here’s why:

Entering into a Sale and Purchase Agreement is legally binding, it’s a contract.

A major principle of property law is caveat emptor or “buyer beware”.

The onus is on you to protect your property, assets and finances, and a Sale and Purchase Agreement contact review does just that.

Ensures a smooth conveyancing process compliant to laws and regulations

The key role of a property lawyer is to oversee the conveyancing process and keep the schedule on track . Invariably this means liaising with real estate agents, the vendors’ lawyers, local councils and other stakeholders. Aside from collating and reviewing information, conveyancers ensure the legal obligations are adhered to.

Sale and Purchase Agreements are guided by the Real Estate Agents Act 2008 and several other regulations including the Real Estate Institute of New Zealand (REINZ) guidelines. Your property lawyer verifies compliance, this includes:

Clear identification of the involved parties (buyer and seller).

Accurate description of the property (address and legal description).

Stated sale price and payment terms (deposit amount and due date).

Confirm the settlement date and terms for ownership transfer and payment of the purchase price balance.

They also review conditions of the sale, such as the security of the buyer’s finance, and confirm:

A satisfactory building inspection report.

LIM report (Land Information Memorandum).

The current tenancy of the property.

Fixtures and fittings included in the sale.

Specific repairs required before settlement.

Detects any unfavourable terms and conditions in the Sale and Purchase Agreement

In the excitement of purchasing a property it can be easy to miss terms and conditions that are unfavourable or put you at a disadvantage. This can include hidden costs, restrictive clauses or unreasonable obligations. By bringing attention to such terms, you can negotiate changes or seek legal advice to protect your interests.

Avoids any misunderstandings and reduces risk of future disputes

Sale and Purchase Agreement property contracts often include complex legal terminology and technical language which, if not interpreted accurately, can cause ambiguities and unintended disputes . A property lawyer clarifies any confusing clauses, so the purchasers buy the property with a complete understanding of the contract’s content.

Protects your investment

A lawyer does not solely look at the nuts and bolts of a property and the geographical context of the section of land the property is on. They also navigate the financial commitment you are committing to and the potential tax implications on the future sale of the property and ensure you are compliant with current regulations. The Brightline test NZ is a critical consideration for anyone buying or selling property. This rule dictates that if you sell a residential property within ten years of purchase (five years if bought before March 27, 2021), you may be liable to pay tax on the profit. This legal foresight can save you from unexpected financial burdens and enable you to plan accordingly whether that’s holding the property in a Trust or some other beneficial financial structure relevant to your circumstances.

Property law is intricate, and the ramifications of an improperly reviewed contract can be severe. Whether you are dealing with property law in Christchurch or on a national level, a professional lawyer helps you navigate these complexities. They provide a property law service to encompasses everything from initial contract review to the final transfer of ownership, ensuring every detail is meticulously handled to safeguard against potential disputes that may arise and preemptively address them within the contract terms.

A legal review ensures that you are making a fully informed decision about the property you are buying. If you would like to have a chat with one of Weston Ward and Lascelle’s property team, call 03 379 1740 . Remember, it’s never too early to seek legal advice for buying a property.

Split happens: costly relationship property mistakes you want to avoid

Tue, 08 Oct 2024 02:16:08 GMT

There’s no escaping it—dissolving a marriage or civil union, or ending a de facto relationship, are life-altering experiences. You’ll learn a lot about yourself, your ex, your friends, and your family: the good, the bad, and the ugly. It’s a time of complex emotional upheaval and financial uncertainty, before you hopefully reach acceptance, growth, and happiness.

If you are at the start of this journey towards your new life , read this article. It’s important you are aware of common pitfalls and financial missteps to avoid during separation.

Mind the gap: not having a true picture of your financial position

It is critical to gain a comprehensive and accurate understanding of your financial position. A dissolution or the breakdown of a cohabiting relationship inevitably leads to a significant change in financial circumstances, so failing to account for these changes can lead to poor decisions and unfair settlements.

Common assets that need to be considered include:

The family home
Savings
Investments
Property
Kiwisaver funds (Superannuation)
Chattels and vehicles
Shares

Understanding the true value of assets is key to negotiating a fair settlement. However, people often underestimate the complexity of the valuation process, especially when the true value of some assets, like Kiwisaver funds, is not immediately apparent.

Dividing assets is not a straightforward task. Work with family lawyers in Christchurch NZ who specialise in relationship property to ensure assets are accurately valued so you have a clear picture of the reality of your finances. Seeking the best legal advice ensures you make informed decisions and consent only to a fair deal.

Failing to instruct a family lawyer to draft the Separation Agreement

Obtaining a Dissolution Order is often when people consider their marriage legally over, severing ties between the two parties. A common misconception is that it includes finances. The dissolution process and the finalising of finances are two separate legal issues. Without a legally binding Separation Agreement, there is always the potential for your ex to make a future financial claim against you, or vice versa, even after years. Separation Agreements are also important for de facto and civil partnership breakdowns too.

There are time limits for applying to the Family Court if an agreement can't be reached through negotiation:

Married couples have 12 months after the dissolution application to apply to the Court.
De facto couples have three years after the date of separation to apply to the Court.

It is mandatory to obtain legal advice from a family lawyer to explain the implications of the Separation Agreement. However, it is wise to instruct a lawyer to draft the agreement too. Yes, it costs money, but Separation Agreements are often legally technical to ensure all aspects of the settlement are addressed; it’s the price you pay for financial security and peace of mind.

Underestimating the impact of Kiwisaver in the settlement

Retirement may be several decades away, and Kiwisaver may be the last thing on your mind, but life goes by in the blink of an eye. Plus, and this is important to realise, Kiwisaver funds are often one of the largest matrimonial assets, yet they are frequently overlooked or undervalued in relationship property settlements.

Depending on your circumstances, you may be entitled to a portion of your partner’s Kiwisaver, or vice versa. Kiwisaver is complex, and there are several options available, including making an adjustment payment. If you currently don’t have funds to make a payment, you may be able to forgo other relationship property to account for the adjustment, take a loan, or even apply through the Family Court to release some of the money. A specialist family lawyer will clarify the implications of each option and protect your position. By not seeking legal advice, you risk losing out on potentially significant funds. Remember, once a Separation Agreement has been sealed by the Court, it’s difficult and expensive to make a future claim.

Moving on romantically before resolving financial issues

Can you have a relationship before receiving your Dissolution Order? Of course. Can you have a de facto relationship or remarry before you’ve signed an agreement confirming relationship property? It’s not so much a question of "can you?" but rather, "should you?"

Entering a new de facto relationship or remarrying before finalising finances can have serious consequences and potentially jeopardise your financial future. It muddies the water. What would happen to your relationship property if this second relationship doesn’t work out? It’s best to resolve financial issues as soon as possible.

If you are experiencing a delay in reaching an agreement with respect to relationship property, contact Weston Ward and Lascelles’ Christchurch family lawyer team. We are experienced in helping ex-partners communicate and reach equitable agreements swiftly. This step will protect your financial interests and allow you to move forward with your new life without the risk of further financial complications.

Not seeking early legal advice when you separate

Separating can be complex, and mistakes made early in the process can have lasting effects. Some decisions could cost you significant amounts of money, while others could be irreversible, preventing you from moving forward when you want to. While it’s commendable to try to reach amicable agreements with your ex-partner without involving lawyers , it is essential to seek legal advice before making any decisions. A family lawyer provides the guidance and expertise you need to explore all the options available to you, so you can make informed decisions that protect your future financial security. Whether it’s understanding the value of your assets or navigating the complexities of relationship property and childcare arrangements, having quality legal advice is invaluable.

Ending a relationship when your lives are so intertwined is rarely straightforward, but with the quality legal advice, you can avoid costly financial mistakes and secure a stable future. The decisions you make during this time will have a lasting impact on your financial well-being, so it’s crucial to approach the process with care and informed guidance. Weston Ward and Lascelles’ Christchurch family lawyers provide compassionate support and a full suite of services including tax advice and estate planning to protect your assets, interests and future. Contact Weston Ward and Lascelles , your local family lawyers in Christchurch today. Call 03 379 1740 for a confidential chat with one of our team.

Getting engaged? How do you ask for a prenup?

Tue, 23 Jul 2024 20:43:09 GMT

Engagements are a significant milestone in many relationships, often marked by special moments shared with loved ones. This time is filled with joy as couples plan their future together. Amidst this excitement, you might find yourself considering the practical aspects of marriage, such as entering into a prenuptial agreement. Discussing a prenup can be delicate, but it's a crucial step in ensuring both partners understand and agree on financial arrangements should challenges arise in the future. Here's how to approach this important conversation smoothly.

What is a prenuptial agreement?

A prenuptial agreement or contracting out agreement, is one of the most important documents you'll ever sign. It allows you to contract out of the Property (Relationships) Act and define your own rules for the splitting of property on the breakdown of a relationship. Agreements can be made between a husband and wife, civil union partners and de facto partners. It is the cheapest, most adaptable and effective way of protecting current and future assets.

Who needs a prenup?

Prenuptial agreements are not a new legal creation, they’ve been around for centuries. There is a misconception that only the very wealthy have prenuptial agreements, however, everyday people also benefit from the protection a prenup delivers.

People who are on their second marriage

With people often having more than one marriage or long-term relationship, a prenuptial agreement is a way to safeguard their assets should their relationship fail.

Couples with different spending habits

A prenuptial agreement outlines each party's financial responsibilities during the relationship and helps manage expectations regarding bill payments, savings, and spending habits. They give clarity as to who owns which debts, income and other assets that have either been bought together or acquired individually.

People due to inherit

If either party expects to receive an inheritance, a prenuptial agreement ensures it remains separate property. This arrangement protects family heirlooms or substantial future inheritances from being divided in the event the relationship breakdown.

It must be noted that if you are a beneficiary of a will , the inheritance is not automatically relationship property and falls outside of the Property (Relationships) Act – if you keep the money as a separate entity from relationship property. For example, if you put the money in a joint bank account, use the money to pay down the mortgage/renovate the house, the inheritance becomes relationship property. If you are in any doubt, speak to one Weston Ward and Lascelles’ team of Christchurch lawyers before you take any action.

Similarly, with blended families being commonplace, prenuptial agreements can be used to protect the inheritance people wish to leave to their children rather than a significant portion being open to claim by the surviving partner.

Business owners

Entrepreneurs and business owners use prenuptial agreements to protect their business interests and preserve the company’s stability and continuity. This agreement ensures the business remains under their control and shields it from potential claims by a spouse. Business lawyers may advise you to change the structure of your business to best secure your future interests, seeking tailored commercial legal advice reduces the risk of future disputes and stress.

How to ask for prenuptial agreement

As experienced prenuptial agreement lawyers, Christchurch’s Weston Ward and Lascelles have seen a steady increase in the number of couples requesting prenups, and have witnessed the impact of both successful requests, and those that have not gone down too well. Asking your partner for a prenuptial agreement is a delicate and sensitive conversation. While it may not be the most romantic topic, discussing a prenup can be a practical and responsible step in preparing for your future together – if handled appropriately.

Before starting any conversation about a prenuptial agreement, it's crucial to recognise the significance of open and honest communication. Approach the discussion with a genuine intention to protect both yours and your partner's assets and financial well-being in the event of unforeseen circumstances.

Choose the right timing and setting

Selecting an appropriate time and place to discuss the prenup is essential, immediately after the proposal is not it. Instead opt for a time when both you and your partner are relaxed and free of distractions. Raising the topic of a prenup during an emotionally charged situation or high-stress period may lead to misunderstandings or conflict. Ensure the setting is private, comfortable, and conducive to having a meaningful conversation.

Emphasise the importance of financial planning

Prenuptial agreements are not about pre-empting a dissolution or separation , rather they are instrumental for financial planning and security for the future. Discuss the benefits of understanding each other's financial expectations and responsibilities and how a prenup serves as a precautionary measure to protect both parties in the case of unforeseen events or potential disagreements.

Focus on mutual protection

A prenuptial agreement is not solely for one party's benefit but is designed to offer protection and security for both individuals. They provide clarity and peace of mind for both parties, ensuring a fair and equitable resolution should the marriage not work out as intended. Reinforce the idea that the prenup is a proactive step to safeguard the interests of both individuals.

Express your intentions clearly and respectfully

During the discussion, express your intentions clearly and respectfully. important to acknowledge your partner's concerns and viewpoints and encourage an open dialogue to address any worries or fears they may have. Be open and honest about your reasons for considering a prenup, emphasising that it is not a reflection of any lack of trust or commitment but rather a responsible approach to financial planning. It’s

Seek legal advice about prenuptial agreements

It’s important you both seek separate prenuptial legal advice to gain an accurate and comprehensive understanding of the legal implications and benefits of a prenuptial agreement. Encourage your partner to actively participate in the process, so they are aware of their rights, obligations, and legal protections. Consulting a professional family lawyer provides valuable insights and guidance throughout the prenup discussion and drafting process.

A prenuptial agreement does not diminish the emotional value and love you share, so it’s important you don’t make the conversation awkward. At its heart it’s a vehicle to provide both parties with certainty and security. If you would like to learn more about prenuptial agreements and how they can impact your financial position, contact Weston Ward & Lascelles for a discreet and confidential conversation on 03 379 1740 .

What do you do with relationship property? Your path to a fresh start

Mon, 17 Jun 2024 02:24:16 GMT

The breakdown of a relationship is incredibly stressful for all parties involved, but when you own a property, it has the potential to be a nightmare. Aside from the emotional and logistical turmoil, often the biggest source of contention is what happens to the family home and assets after splitting up.

Any couple in New Zealand has three years after the date of separation to divide relationship property either through a Separation Agreement or an application through the Family Court. It sounds a long time, but the time is needed if there are disputes and negotiation is required.

What are the steps that need to be taken when you separate?

Your first priority is always to make sure you and your children are safe. If you have experienced family violence, feel unsafe or have been threatened, you should consider applying for a Protection Order as a matter of urgency. Remember, not all family violence is physical .

Even if you are on great terms with you ex and have amicably split, it is advisable to get agreements formalised by a lawyer. You do not know what the future looks like or whether their or your sentiments may change.

The next step is to contact a lawyer

What legal advice do I need?

The greatest mistake people make when going through a relationship breakdown is not seeking quality legal advice early on. You only have one opportunity to go through this process to secure your financial future, so it’s critical to get it right first time.

Nobody likes spending money on legal fees ; however, you cannot place a value on peace of mind knowing a permanent line has been drawn in the sand. Depending on your circumstances, you may need to draw on advice from different specialist areas of law. They could include:

· Family Lawyers

A Family Lawyer provides essential support and guidance during the emotional and legal complexities of relationship breakdowns. Helping navigate child custody arrangements , financial support, and spousal maintenance, a family lawyer ensures all parties' rights and obligations are clearly defined and legally upheld. In the context of relationship property, a Family Lawyer ensures the division of assets are fair and comply with the Family Proceedings Act 1980, providing the foundation for a fresh start.

· Relationship Property Lawyer

A Relationship Property Lawyer specialises in the division of assets under the Property (Relationships) Act 1976. Their expertise streamlines the process by reducing conflict and facilitating a smoother transition post-separation. With expert advice on identifying and valuing relationship property and negotiating settlements it’s possible to achieve an equitable division of property and assets without emotions clouding judgement. A Relationship Property Lawyer represents you to protect you and your interests while complying with legal standards.

· Tax Lawyer

Depending how intertwined your finances are with your ex-partner, a Tax Lawyer can provide crucial advice on the tax implications of splitting up and the division of relationship property. They identify potential tax liabilities and benefits associated with property transfers, asset sales, and settlements to optimise financial outcomes, minimise tax burdens and avoid unexpected tax issues.

· Residential Property or Conveyancing Lawyer

A Property or Conveyancing Lawyer handles the legal aspects of transferring ownership of property. With respect to relationship property, they assist in selling shared properties, transferring titles, and managing mortgage arrangements. This helps you to manage the practicalities of moving on from a shared home and secure new housing.

What happens with a jointly owned property after splitting up?

When there is any transfer of ownership of a property, a Conveyancing Lawyer ensures all legal requirements are met during the sale or purchase process, but you may also need to consult a Relationship Property Lawyer to navigate any valuation complexities or negotiate on your behalf should there be a need.

Whether it’s the end of a marriage, civil union or de facto relationship, when it comes to a shared property , there are three options to consider:

Purchasing your ex-partner’s interest
Selling your interest to your ex-partner
Selling the property together

No matter which option you are initially considering, to ensure a smooth, compliant, and legally sound process it is essential to seek independent advice from a Family Lawyer and get them to draft a Separation Agreement.

Why do you need a Separation Agreement before you sell a house?

A Separation Agreement is a legally binding document to confirm the division of assets and liabilities of the relationship. A Separation Agreement ensures neither party can make a relationship property claim against the other in the future. It takes away any ambiguity and outlines expectations of what is expected in terms of conduct and cooperation. A Separation Agreement serves as the foundation for the transfer process.

· Securing finance to buy your ex-partner’s interest

If you are buying out your ex’s share in the property, securing finance is likely high on your agenda. Arranging funds through a bank or other financial institution is typically expedited when a copy of a Separation Agreement is provided – the bank evaluates your financial situation in relation to the terms outlined in the agreement.

· Selling your share of the property to your ex-partner

Sometimes it is mutually beneficial to sell your interest to your ex-partner, but with this comes the need for open and constructive communication. The Separation Agreement will be the base document for the transaction. It also protects your interests and establishes the framework for the property transfer.

· Selling the property together

Sometimes the most appropriate course of action is to sell the property together. The Separation Agreement clarifies the distribution of the sale proceeds, safeguards your rights and establishes clear responsibilities and obligations of both parties throughout the process.

Getting to the stage of settlement can be complex, but by seeking legal advice from a Family Lawyer early in the process means you can proceed with confidence, safe in the knowledge you have a legal team serving your best interests. Contact us today for a confidential no-obligation chat, click here or call 03 379 1740 to see if we can assist you.

EPAs & the Protection of Personal & Property Rights Act

Thu, 30 May 2024 22:11:39 GMT

There are only two certainties in life: you are born and you die. What happens between these two dates is down to the decisions you make, luck and misfortune. It’s an uncomfortable truth, but the reality is people are rarely adequately prepared for misfortune. Only half of New Zealand’s adults have made a Will, and based on data from the Public Trust, it’s estimated that only 17% of New Zealanders have an Enduring Power of Attorney (EPA) .

People often only realise the value of these life-planning documents when it’s too late. There tends to be an assumption the only thing they need to do in terms of preparing for the worst is to write a Will . The logic behind this being that should they lack capacity and be deemed incapable of making decisions, their next of kin, (whether that’s a partner, child, or parent) can automatically legally make decisions for them and manage their affairs. Unfortunately, this assumption is incorrect, and often only comes to light at times of crisis. Noone, including family members, can lawfully make decisions for another person over 18 years old without permission from the Family Court.

What is meant by lack of capacity?

While there is no single legal definition of capacity in New Zealand law, capacity refers to an individuals’ ability to make decisions or take actions that influence their lives. If someone lacks capacity, they cannot understand the nature or foresee the consequences of their decisions or be unable to communicate them and/ or no longer fully competent to manage their own money or property.

Making decisions you do not agree with or living their life in a way that you believe is not right, are not grounds for a Court order to make an order. It is not enough for relatives or loved ones to simply state a person does not have capacity, there is legal process to follow and an assessment to undertake. Courts are sensitive to as to whether an individual is competent to make a decision or they are bending to pressure from others, this is called undue influence.

How do you proactively prepare for potential misfortune? The first step is to make an appointment with Weston Ward and Lascelles’ lawyers in Christchurch, you will need legal advice. Our experienced Wills and Estate lawyers advise clients what information should be included and the decisions they must make. It can feel overwhelming just thinking about it, but with the best legal advice, you will be able to govern how future you will be cared for and supported with an application under the Protection of Personal and Property Rights Act 1988.

The Protection of Personal and Property Rights Act, what does it do?

Also known as the PPPR Act, the Protection of Personal and Property Rights Act 1988, is designed to protect the personal, financial and property rights of people who are not fully capable of managing their own affairs and lack capacity. The PPPR Act allows the Family Court to make orders for the appointment of welfare guardians and property managers, and to grant Enduring Powers of Attorney (EPAs) to protect those who do not have capacity.

What is an Enduring Power of Attorney?

The best way of protecting your future health and wealth is to have an Enduring Power of Attorney in place. An Enduring Power of Attorney is a legal document confirming who can take care of your personal or financial matters should you no longer have capacity.

EPAs are not exclusively relevant to seniors. Capacity can be diminished for a host of reasons. If a person is mentally unwell, intellectually disabled, has dementia, becomes gravely ill or has a serious accident that impacts their mental capacity, they may no longer be able to make decisions for themselves. While no one likes to think about these scenarios, it’s important to take control of all eventualities before an emergency situation arises. It’s critical to note, EPAs can only be made when the person has capacity and fully understands what they are asking for.

There are two different types of Enduring Power of Attorney:

Personal Care and Welfare EPA: the person you appoint to advocate for your health and wellbeing is called your attorney. They can make decisions about where you live, medical treatment or who will care for you if you become incapable to do so. Should circumstances change and your attorney can no longer fulfil the role, a successor attorney can also be named. You can state the areas you wish the attorney to act for you in – it’s customisable to meet your wishes.

Property EPA: you can appoint one or more people or even a trustee company as your property attorney to manage your finances and property. You can state when they can act for you (you may want immediate help or wish to limit representation to a time should you lose mental capacity) and whether they act in a general or in a restricted way (such as authority limited to specific bank accounts etc).

What happens if you do not have an Enduring Power of Attorney?

You do not have choice or control over future medical and care decisions .
You do not have choice or control over your property and finances.
You do not have choice as to who makes decisions about your health and You do not have choice or control as to who controls your finances and property.

For the 83% of New Zealanders who do not have an EPA in place and have not nominated anyone to look after their affairs should they lose capacity, there are tough times ahead. When capacity is unpredictably lost, it is typically due to sudden illness or an accident. Hospitals do not legally have to release information about patients to their family members or caregivers (although the Health Information Privacy Code gives healthcare professionals some discretion in emergency situations). Similarly, institutions such as banks, insurance and power companies are reluctant to engage with any other person unless there is signed authority. It’s often a time of great stress amplified by the lack of administrative power.

In these circumstances, a lawyer can make an application to the Family Court under the Protection of Personal and Property Rights Act to appoint someone to look after your care and property. They may not be who you would choose.

Why choose WWL as your Enduring Power of Attorney lawyers in Christchurch?

Weston Ward and Lascelles are a highly experienced multi discipline Christchurch law firm who help individuals and families prepare for the future, so it’s easier to do what’s best should the need arise. With the dedicated support of our Wills and Estate Planning team and Family Trust Lawyers, we offer legal services tailored to your unique needs. Click here or call 03 379 1740 to make your first appointment.

The Essential Guide to Shareholder Agreements for Success

Mon, 22 Apr 2024 04:09:55 GMT

A Shareholder Agreement is an essential legal document for any business owned by more than one person (not being their relationship partner) It’s a legally binding agreement between shareholders or business partners to establish a framework of how the company should be operated and outlines the rights, obligations and roles of the shareholders when (not if) one of the eventualities occur.

What is in a Shareholder Agreement NZ?

Shareholder Agreements include, but are not limited to covering off:

One of you are:

Dying
Suffering total permanent disability
Suffering trauma
Waiting to retire

You started fighting and neither want to leave
If leaving how a fair price for your interest is fixed
What happens if the others refuse to buy you out
What happens if you are leaving and have money tied up in the business
Controls around hiring/firing, borrowing, extending credit and changing business directors etc

Why do you need a Shareholders Agreement in New Zealand?

Consider a Shareholders Agreement as the bedrock of a business structure ; without it, the business’ foundation becomes precarious. It ensures shareholders are treated fairly and their rights are protected, whether from internal conflicts to ambiguity regarding share valuation and shareholder roles. Essentially, it serves as a proactive measure to avoid potential crises and gives structured processes to stop disagreements escalating and avoid complications.

Shareholder Agreements do not exclusively protect your position in the daily running of a business. Aside from being a valuable tool for conflict resolution within the business, a Shareholder Agreement also protects you in the event of circumstances beyond your control. To draw a comparison, Shareholder Agreements are the business equivalent of a Relationship Property Agreement or pre-nup. It’s crucial to make plans for all events, and consider what will happen to your interest in the business should:

You die, suffer total permanent disability or trauma. How can you turn your interest in the business into money for your family?
Your co-shareholder or business partner dies or suffers incapacity. Will you end up working with somebody who can no longer “pull his or her weight”; or with their spouse (as the inheritor under their Will) trying to get involved? Or can you force the deceased/incapacitated party to sell out and if so, for how much?
You want to exit the company. Whether through disagreement or retirement, is there an orderly process for this to happen at a fair price or could “obstacles” be put in your way?

A Shareholders Agreement provides clarity should major changes occur which may adversely impact the company, but they are also be seen as a sign of good business governance. Banks and investors are particularly supportive of such strategic business structures as they demonstrate a keen commercial understanding and due diligence.

When should you set up a Shareholders’ Agreement?

In the ideal world, a Shareholder Agreement is drawn up before you start or acquire a business . Unfortunately, whether to save legal costs or assuming business relationships will always remain on good terms, many business owners don’t organise a Shareholder Agreement. Without one in place, a business risks coming under serious strain or litigation if there are disagreements between the shareholders. The consequence is typically a highly stressful and costly legal dispute, invariably costing you more money than any perceived savings.

It is never too late to get an agreement drafted and signed. Even well established family firms with good working relationships, trust and goodwill should have a Share Agreement in place.

Do I need a Shareholders Agreement and Company Constitution ?

While there is an overlap between a company’s constitution and a Shareholder’s Agreement, differences exist. A Shareholder Agreement is confidential and unlike a company constitution is not registered with the Companies Office.

A Shareholders Agreement regulates relationships and specific operational matters beyond a company constitution and is detail rich. Consider the scenario of a shareholder in a relationship property dispute. A Shareholder Agreement can even require shareholders to enter into a Property Relationship Agreement with their spouse whereby it is agreed that in the eventuality of a separation the spouse is only entitled to claim other assets and the business shares remain in possession of the business active person.

Why you need legal advice for a Shareholder Agreement

It is crucial you engage experienced and reputable business and family lawyers in Christchurch to navigate, negotiate and create a legally robust Shareholder Agreement to meet your specific and unique requirements.

Weston Ward and Lascelles’ Ltd highly skilled lawyers guide clients through the process, and tailor an agreement to meet your current and future needs. The advice we give is both sensible and commercially viable, designed to efficiently protect the business and the shareholders within business protection laws.

Here’s how Weston Ward and Lascelles Ltd can help you:

Draft Shareholder Agreements
Review existing Shareholder Agreements
Negotiate Shareholder Agreements on your behalf
Act for the business in shareholder disputes

It’s important to note Share Agreements should not be considered as standalone vehicles of financial protection for the future. There are other legal areas to review to strengthen your long-term financial position, contact Weston Ward and Lascelles Ltd Christchurch law firm for advice on:

Estate planning
Legally minimise the amount of income tax you are liable to pay through restructuring. For example, spreading income between yourself, the business, trusts and family to maximise marginal income tax brackets; exchanging non-tax-deductible borrowing for borrowing that is tax deductible.
Creating a Family Trust
Ensuring Wills , Living Wills and Enduring Powers of Attorney are up to date
Review terms and conditions of trade
Draft or review Employment Agreements
Draft or review a Property Relationship Agreement

What are the next steps to organising a Shareholder Agreement?

Please note this article does not constitute legal advice and may be outdated, and as there is no one-size-fits-all Shareholder Agreement in New Zealand, it’s important to make an appointment with our Christchurch legal team to discuss the nuances of your circumstances. Call 03 379 1740 or click here to arrange a mutually convenient time.

Rosa Bellolio Roth: Leading the Future of Weston Ward & Lascelles

Thu, 18 Apr 2024 23:45:44 GMT

Weston Ward & Lascelles, a law firm with a storied history spanning 140 years in Christchurch, is thrilled to announce a significant milestone in its leadership evolution. Rosa Bellolio Roth, previously a senior associate and a vital member of the litigation team, has been promoted to Director, marking a new chapter in the firm’s legacy.

Rosa’s journey with Weston Ward & Lascelles has been marked by dedication, expertise, and a deep commitment to justice, particularly within the realm of family law. Her promotion comes at a pivotal time as the current partners, seasoned veterans nearing retirement, are passing the torch to ensure the firm’s continued growth and excellence.

In her new role, Rosa will maintain her influential position within the litigation team while embracing increased responsibilities. This transition is part of a strategic plan, with one of the current partners beginning to scale back her hours to mentor Rosa in taking the helm of the litigation team.

Rosa's vision extends beyond maintaining the status quo. She is committed to expanding the business, with a special focus on strengthening the family law team. This initiative has already seen the addition of a new PA and a law graduate, with plans to welcome a junior solicitor in early 2024, reinforcing the team’s capacity to deliver top-tier legal advice and access to justice for their clients.

As a director, Rosa will also rotate as the partner in charge of various critical operational areas, including AML (Anti-Money Laundering), HR (Human Resources), complaint resolutions, and eventually, trust account supervision. Her involvement in these areas signifies a broader engagement in the firm’s leadership and decision-making processes.

What sets Rosa apart is not just her legal acumen but her forward-thinking approach to law practice. Being younger than the current partners, she brings a fresh perspective to the table, with an openness to incorporating new technologies and ideas that can enhance the firm’s efficiency and service delivery.

Rosa's aspiration to develop a larger family law team is rooted in a commitment to providing exceptional legal advice and ensuring access to justice for all clients. Her leadership marks a significant step forward for Weston Ward & Lascelles, promising a future that respects the firm’s rich heritage while embracing the innovations and challenges of the modern legal landscape.

Please join us in congratulating Rosa on her well-deserved promotion. Her vision and leadership are not only a testament to her personal dedication and skill but also signal a bright future for Weston Ward & Lascelles as it continues to serve the Christchurch community with integrity and excellence.

Coercive control and what it looks like

Mon, 08 Apr 2024 23:10:42 GMT

If you are reading this article because something about your relationship doesn’t feel right to you, it’s most likely not, and Weston Ward and Lascelles’ family lawyers in Christchurch NZ think you should continue reading. It’s important to be aware that not all types of family harm and domestic abuse involve physical violence, there are many different types of abuse that can occur in an intimate relationship.

Disagreements happen in all relationships, but if they become more frequent and start to form a pattern for when they occur, it can be a sign there is something more going on and the relationship is abusive. Using the word abusive can make you feel uncomfortable. It can be incredibly hard to acknowledge what is happening to you. The realisation you are in an abusive relationship can be painful and unleash a sense of shame and guilt. You might start wondering, ‘Could you have prevented it? Stopped it? Loved your partner more?’, Trauma-related guilt often stems from a feeling that you could have done something more or differently during the relationship; however, abuse is not your fault and nor could you have stopped it. You are not responsible or to blame for your partner’s abusive behaviour; abuse is a pattern of power and control.

In recent years, the discourse surrounding family harm has expanded to include a more nuanced understanding of abusive behaviour. Domestic abuse isn’t just about physical violence . It isn’t just about a strong man physically abusing a weak woman. The problem with this cultural narrative is the signs of abuse in a relationship are often not recognised, because it doesn’t ‘look’ like it. Domestic abuse can take the more subtle form of coercive control.

What is coercive control?

Coercive control is a continuous pattern of behaviour of assaults, threats, humiliations and intimidation with the intention to punish, harm or frighten. These repeated behaviours can have a serious impact on the survivors, depriving them of their independence, self-esteem and confidence and often making them feel isolated and scared.

How to recognise coercive control

It can be tricky to recognise coercive control, primarily because every relationship is different, but also because the abusive behaviour often starts subtly and escalates slowly, but there are common behaviours and red flags that controlled relationships share:

· Isolating you from friends and family

· Closely monitoring your activity

· Controlling your environment

· Restricting your freedom

· Gaslighting you so you question your sanity

· Constantly criticising you

· Controlling your finances

· Forcing you to live by their rules

· Sabotaging the relationship with your children

· Policing your lifestyle

· Making jealous accusations

· Preventing you from getting help

· Controlling your sexual relationship

· Threatening violence

· Blackmail

Abusers do not usually use coercive control exclusively and research shows it typically underlies other types of domestic abuse:

· Physical or sexual violence

· Emotional and psychological abuse

· Economic harm

· Tech abuse

What can you do if you are in a controlling relationship?

Coercive control creates invisible chains and feeds a sense of fear that impacts all aspects of a victim’s life. Controlling behaviours and stalking are more reliable indicators of serious harm than any other single factor, including violence itself – often stemming from a loss of control post or during a separation.

Leaving an abusive relationship is not straightforward. While you may recognise you are in an abusive relationship, you may feel you don’t have the emotional resilience or strength to do so. This is because you have been gradually disempowered by your partner, but with the right help and support, you will be able to, you are not alone.

If you have time to make a plan, do so. You will need to work out where you are going to live, and how you will take care of your children. It is crucial to get the best legal advice for family violence if you have children or there are relationship property issues .

Your first port of call should be to a family lawyer. Christchurch law firm Weston Ward and Lascelles’ family law team are experienced in supporting people through the stages of family law processes, helping them to thrive and not just survive. Remember, you may be eligible for family law legal aid to assist with your legal costs.

How does family law protect survivors?

If you are in immediate danger, you need urgent help. Call 111 straightaway and access crisis services to help you (contact details are at the foot of this article). Assaults and threats of violence are crimes, and the police can charge. The police can also make an emergency order, called a Police Safety Order. This is a temporary safeguard for up to 10 days to give you time to contact a family lawyer to apply for a Protection Order .

If your case meets the following legal requirements you can apply for a Protection Order:

1. There has been a domestic relationship

2. There is a history of domestic violence – physical or psychological abuse

3. There is a need for protection

What is a Protection Order?

Issued in the Family Court, Protection Orders prohibit the abuser from contacting or being near you, your children (whether they live with you full or part time) or other individuals listed in the order.

If you or your children are at risk of harm or will face undue hardship a Protection Order can be made quickly ‘without notice’ which means the abuser will not know about it until it has been made. The order clearly explains what the abuser can and cannot legally do – including contacting you. If the order is breached, they risk a fine or prison. Conditions can also be made to protect your home and property.

A Protection Order is temporary until the final hearing where the Courts consider the evidence and merits of the application; if no defence is submitted within 3 months, the temporary order becomes final. Obtaining a final Protection Order is not automatic. your case must meet the legal requirements.

It’s important to seek expert family law advice NZ for your unique circumstances. Weston Ward and Lascelles family law team are compassionate yet dynamic, having considerable experience representing clients in family violence matters; we robustly advocate for our clients and their families.

If you would like a free no-obligation chat, please call 03 379 1740 . You will not have to come into our Christchurch family law firm office and our conversation will be in total confidence.

Where to go for help or more information:

Women's Refuge: Free national crisis line operates 24/7 - 0800 refuge or 0800 733 843 www.womensrefuge.org.nz
Shine, free national helpline 9am- 11pm every day - 0508 744 633 www.2shine.org.nz
Shakti: Providing specialist cultural services for African, Asian and middle eastern women and their children. Crisis line 24/7 0800 742 584
It's Not Ok: Information line 0800 456 450 www.areyouok.org.nz

Infidelity and family law: what to do if your partner is cheating

Tue, 17 Oct 2023 22:44:22 GMT

Shocked, betrayed, confused, and angry. These are the emotions that hit you first when you discover your partner is cheating. Finding out your spouse is having an affair is devastating; it often signals the shattering of the future you thought you were building together.

But while the emotional toll is heavy, the financial reality of separation needs immediate attention. If the trust is gone, your priority must shift to protecting your future and your assets.

Worried about your assets?

If you’re separating due to infidelity, your financial security is the priority. Don't wait for things to get messy.

Get in touch with our family lawyers to discuss protecting your share of the relationship property.

Should you stay or should you go?

There is no right or wrong response to a partner’s infidelity. Whether you aim to salvage the relationship through counselling or decide it is time to move on, there is work to be done.

If you decide to end the relationship, you need to look beyond the heartache. There are legal, financial, and practical challenges to navigate immediately—specifically regarding relationship property and care of children .

Does cheating affect who gets the house and money?

This is the most common question we get asked. In New Zealand, the law regarding the division of assets is generally "no-fault."

There is a misconception that if a partner cheats, they will be "punished" by the courts, or that the innocent party will receive a greater share of the assets. The reality is that adultery does not automatically alter the equal sharing rule under the Property (Relationships) Act.

However, there are three critical exceptions where the "50/50" rule might change.

1. The "Financial Infidelity" Argument (Dissipation of Assets)

Did your partner spend significant relationship funds on the affair?

Relationship Debt vs. Personal Debt: If your partner took out loans or racked up credit card debt to fund trips, hotels, or gifts for someone else, we can argue these are personal debts , not relationship debts. You should not be liable for half of the debt they created to cheat on you.

Dissipation of Assets: If they have deliberately run down your joint savings or sold assets to hide money, we can seek to have that value "added back" into the pool before division, ensuring you aren't short-changed.

2. Economic Disparity (Section 15 Claims)

This is the most powerful tool for spouses who sacrificed their career for the family.

If you stayed home to raise children while your partner built their career, they are leaving the relationship with a higher "income earning capability" than you. Under Section 15 of the Property (Relationships) Act , the court can award you a lump sum compensation to address this imbalance.

Example: If your partner earns $150k and you earn $40k because you’ve been out of the workforce for 10 years, a 50/50 split of the house might not be fair. We can fight for a larger share (e.g., 60/40) to balance the scales.

3. Trusts are not bulletproof

A common threat we hear is: "Everything is in a Trust, so you won’t get a cent." This is rarely true. New Zealand courts have cracked down hard on "illusory trusts" or trusts used to defeat relationship property claims. If the trust was effectively treated as your partner’s personal piggy bank, we can often "bust" the trust or claim compensation for the value locked inside it.

The "Psychological Abuse" Factor in Custody

While infidelity itself doesn't usually dictate custody arrangements, the behaviour around it can.

Under the Family Violence Act 2018 , psychological abuse is recognised as a form of family violence. This can include:

Gaslighting: Manipulating you into doubting your sanity regarding the affair.

Coercive Control : Isolating you from support networks or controlling finances.

If your children have been exposed to this conflict, or if the psychological abuse raises safety concerns, this becomes a critical factor in Parenting Orders . The court’s first priority is the safety and wellbeing of the children, not the "rights" of the parents.

Why you need legal advice immediately

Trying to negotiate a separation while you are grieving an affair is dangerous. Emotions run high, and guilt or anger can lead to impulsive decisions—like moving out of the family home too early or agreeing to a financial split just to "get it over with."

Here is why you need a lawyer in your corner:

Objective Guidance: We stop you from making decisions based on anger or sadness that you might regret financially later.

Protecting Your Rights: We determine exactly what counts as "relationship property" (including Kiwisaver, businesses, and investments) to ensure a fair division.

Negotiation & Mediation: We handle the difficult conversations with your ex-partner or their lawyer, keeping the process as non-confrontational as possible.

Next Steps

If you have discovered your partner is cheating, take a breath. Then, take action to protect your future.

At Weston Ward & Lascelles , our Christchurch family lawyers offer discreet, confidential, and frank advice. We work to get the best equitable outcome for our clients and their dependents through the least stressful means possible.

Contact us today on 03 379 1740 to make an appointment, or learn more about Relationship Property division here .

Probate FAQS

Wed, 09 Aug 2023 04:20:07 GMT

After someone dies, there are usually many financial and legal tasks that need to be done. Managing someone else’s affairs is never easy, but probate is something you do need to prioritise.

Weston Ward & Lascelles provide legal services in Christchurch. We assist clients in creating tax-efficient ways to protect assets after death and guide families through the probate process.

The process of probate is important. It's a way to protect the deceased person's belongings and make sure their wishes are followed. That's why there are legal steps you need to take before you can access and divide their estate.

What is probate?

Probate is permission from the High Court for the Executor to carry out the instructions of the Will. Executors in a Will find out what money, assets, and possessions the deceased had. They give these things to the beneficiaries after paying taxes and debts.

What duties does an Executor have?

Executors play a critical role in managing the deceased’s estate. Aside from the administration and distribution of the finances and assets, the Executor has other important responsibilities. These include:

The funeral arrangements
Validating the Will
Representing the estate and being personally liable if there are legal proceedings or a claim on the estate
Managing and maintaining the deceased’s property and assets

Being an Executor can be a demanding unpaid role. Extra responsibilities can be difficult. They can also be time-consuming and emotionally challenging. This is especially true when dealing with the wishes of the deceased's family and others who will benefit.

It’s important to note, you are not legally obligated to fulfil the Executor role. If you do not want to be an Executor, you may renounce your appointment. However, if you are the sole executor and there is no provision in the Will stating that “you are unable or unwilling to act” you will not be able to renounce.

Typically Wills have an alternative Executor listed, and they will be contacted to apply for Probate. If no alternative Executor is chosen, there is a specific order for people who can apply for a Letter of Administration.

Does every estate have to go through probate?

No, the probate trigger estate value is $15,000. However, there is some wriggle room: estates holding less than $15,000 in shares or in one financial institution are not required to go through probate.

Mr X's car is worth $7,000. He also has $3,000 in a Freedom account and $12,000 in a savings account. You can see how Mr. X’s estate will not need probate. However if the deceased owned a house property it is always necessary to apply for Probate.

If you are unsure whether the estate needs to go through probate, it’s crucial to seek probate legal advice . Failing to work within the law carries serious consequences.

How do you get the Grant of Probate?

Only the Executor can apply to the High Court for the Grant of Probate unless there is no Will (see below). The Executor completes a form for the court. The form includes the deceased person's most recent Will. The Executor also includes a written statement to confirm the Will.

1. Their identity

2. How did they know they were the Executor and/or did they know the deceased

3. To the best of their knowledge the Will is the latest version

4. They will carry out the instructions of the Will

Once the Court Register has verified the Will and supporting documents, the Grant of Probate will be made.

Do you have to use a Probate Lawyer or can you do it yourself?

No, you do not have to instruct a Lawyer for the Grant of Probate. The application forms are accessible on the government website. However, the website recommends seeking legal services to:

Clarify key areas of information such as contesting a Will, distributing an estate, or proving the validity of a Will.
Fill out the forms to present the circumstances to comply with legislation.

Estate administration and probate application is a labour-intensive process involving tax calculations, legal terminology and regulations and extensive paperwork. Executors are legally responsible for any errors or mistakes, even if they were not intentional.

If the estate is simple, getting the Grant of Probate can be easy. But in some cases, it's better to seek legal advice.

The terms of the Will are not clear
Some of the beneficiaries are under 18
Some of the estates is held in a trust
The estate includes land or property overseas
The deceased owned a business
The Will may be disputed

Doing probate yourself may appear cost-effective, but errors can lead to higher expenses compared to seeking professional advice initially. The price you pay for probate legal advice is for peace of mind.

What does the Grant of Probate allow you to do?

The Grant of Probate is proof the Executor has the right to deal with the deceased’s assets. This includes:

Close bank accounts
Sell shares
Withdraw investments
Transfer ownership of land
Make a claim for any life insurance policies
Recover monies owed to the deceased
Pay debts the deceased owed

When can the assets be released?

The Executor holds onto the assets for a minimum of six months. This allows for any potential claims against the estate to be made within that time. After this period, the Executor can distribute the assets within one year.

What happens to probate if someone contests the Will?

If someone makes a claim after the estate is distributed, they must make the claim against the recipients of the assets. The claim cannot be made against anyone else.

If someone makes a claim after the estate has been distributed, the claimant will need to make a claim directly against the person or people who received the assets (known as following the assets).

A common misconception people have is that the legal cost of challenging a Will is paid for by the estate. The general rule for legal services fees is if you succeed with your case, your costs are paid by your opponent. However, the award of costs is subject to the discretion of the Court, especially in family law dispute matters.

It’s crucial all communication between the parties (Executor and beneficiaries) and the contester remain calm, cordial, and non-confrontational. Strong emotions can be harmful and influence the Judge's decision on who should cover the expenses. If tensions rise, it's smart to hire a lawyer as Executor to lessen the impact on people and maintain some order.

How do I challenge a Will?

If you believe the deceased’s Will was not made properly, or forged or they could have been pressured into making it, the Will may be deemed not valid, and you may be able to contest it.

Alternatively, if the Will is valid but you feel you have been treated unfairly or not provided for adequately, you may be able to claim.

First, consult a Will dispute lawyer to ensure you have valid reasons for applying. Challenging a Will can be long and stressful. Get legal advice early to know your rights, meet deadlines, and increase your chances of winning.

What happens if there is no Will?

If someone you love dies without a Will, it's called dying intestate. You'll need to apply for Letters of Administration on Intestacy. The court chooses an administrator to be the executor and divide the estate's assets. This person is typically a close relative who is still alive.

It's a good idea to get legal help for family problems. A probate lawyer can protect you and guide you through the legal steps. This should also be a timely reminder to write or update your own Will .

Contact us today for any questions or to learn more about probate, Wills, family trusts, and estate planning. Click here to send an email, or call 03 379 1740

Disputing a Will: Have you got a claim?

Wed, 09 Aug 2023 02:05:06 GMT

The death of a loved one or someone you were close to is, without a doubt, an emotional time. Even if the death was expected, the sense of shock and grief is profound. Imagine then, the complexity of emotion when you discover your inheritance is not what you were expecting.

More people are applying to the High Court for probate disputes, Will disagreements, and contesting a Will. The number has been increasing steadily in recent years. There are several possible reasons for the increase. One reason is that higher property values make estates more valuable.

This leads to more claims being pursued. Another reason is the presence of complicated family structures. These structures often involve multiple marriages and blended families. affordable legal advice for challenging a Will and even an increase in people feeling entitled to inherit.

Whatever the reasons for the increase of Will disputes, these may include; if you’ve been left out of a Will, not inherited as much as you thought, or think the Will is incorrect, or if you simply want a fair remedy, you should seek legal advice. Weston Ward and Lascelles' Will dispute lawyers in Christchurch have expertise in assisting clients who are scared of challenging a Will. They are skilled at guiding clients through the process.

On what grounds can you challenge a Will?

There are various claims that can be made on an estate. It's important to hire a Will disputes lawyer to determine the best legal action for your specific situation.

Here are 7 of the most common scenarios where Wills are challenged:

1. The Will was drafted badly and incorrectly either by a professional or through a DIY Will kit.

2.If a close family member who financially supported the client dies and their Will does not provide enough for the client.

The person who died made a promise to leave something to the client because the client helped them. However, this promise was not written in a Will.

4. If the deceased did not have the mental capacity at the time the Will was made.

5. If the deceased experienced undue influence or coercive control to change their Will.

6. If people other than the Executor have removed or tampered with the estate’s assets.

7. The Executors are acting inappropriately.

How to Contest a Will

If you want to contest a Will, it is important to seek legal advice promptly. This is because there are specific time limits for certain claims.

This is particularly relevant if you are a spouse or de facto partner. To make a claim for Relationship Property , you must do so within 6 months from the Grant of Probate. This timeframe is distinct from the Family Protection Act 1955, which allows a 12-month period for making a claim. However, if the claim is on behalf of a mentally handicapped person, the time frame extends to 2 years.

To make a claim for Relationship Property, you must do so within 6 months from the Grant of Probate. This timeframe is distinct from the Family Protection Act 1955, which allows a 12-month period for making a claim. However, if the claim is on behalf of a mentally handicapped person, the timeframe extends to 2 years.

Will disputes can damage relationships between the deceased's family and friends. However, these disputes can be resolved through mediation rather than going to court.

Weston Ward and Lascelles Christchurch lawyers are here to support you through the process. We'll look at the proof, discuss your choices, and give you a truthful evaluation of your expected success. We’re sensitive to your vulnerability following your loss and work diligently to protect our clients’ well-being and financial position.

To schedule a private call with our Christchurch lawyers, dial 03 379 1740 or email by click ing here .

Remember to creat e or update your Will to ensure you follow your wishes and reduce the chance of anyone contesting it.

How to protect your business in a recession

Wed, 28 Jun 2023 02:45:11 GMT

Here are proactive steps you can take as a business owner to safeguard your business during a recession. In this post your we explore some valuable strategies and insights to help protect your business during a recession and how our Business Lawyers offer essential assistance .

Structure your business for resilience

How your business is set up is the first area you should review. The structure you ran with when you first established your business may not be the best option for you now. A company’s legal structure needs to be both robust and adaptable, and if it isn’t, the business is built on unstable foundations and open to creditor claims.

How our Christchurch Business Lawyers can help

Together we’ll explore the most suitable legal entity for your business. Changing legal entity can be a way to benefit from liability protection and carry tax advantages. Consulting with a law firm helps to navigate the complexities of business structures and select the best business structure for your unique circumstances.

Cashflow

Successful business owners needs to have a strong understanding on their cashflow and their business’ financial position. One way to increase your cashflow is by having terms and conditions of trade with your clients. This document will outline the work you do for them, what your responsibilities are, your fee, fee enforcement provision and disputes resolution options.

How our Christchurch Business Lawyers can help

Our experienced Christchurch Business Lawyers can help by drafting bespoke terms and conditions of trade. Bespoke terms can reduce the chances of any fee disputes and other disputes further down the track.

Review the commercial lease

Commercial leases typically represent a significant portion of a business’ expenditure, so during a recession and when the potential for revenue to be negatively impacted. It’s crucial to review and renegotiate commercial lease terms to minimise costs to regain financial stability.

How a Business Property Lawyer can help

By carefully examining the terms of your commercial property lease, a Business Property Lawyer identifies the opportunities available to you for renegotiation or lease restructuring while ensuring you remain compliant to legal obligations.

Contract review and negotiation

Reviewing and renegotiating existing contracts with suppliers, vendors, and clients can be a strategic move during a recession so the contracts better align with your financial goals and limitations. For example, this can include revising payment terms, debt recovery and credit control procedures or modifying delivery schedules.

How a Contract Lawyer can help

A Contract Lawyer analyses the existing contracts the business is bound by to ensure the terms and conditions work to your advantage while maintaining the essential working relationships.

Contact us today for a free, confidential no-obligation chat about how we can help your business. Click here or call 03 379 1740 .

Estate Planning: a plan for life

Wed, 28 Jun 2023 01:31:44 GMT

There are only two certainties in life: your birth and your death. While one is celebrated and talked about, the other is an elephant in the room – the topic you speak about in hushed tones. Nobody likes to think about their own mortality, but by avoiding the subject you risk leaving your family with a financial mess to unravel at a time when they will be grieving their loss. Estate planning is a crucial aspect of ensuring the smooth transition and management of assets and affairs in the event of incapacity or death.

At what age should I start estate planning?

Today! Many people assume estate planning is purely for more senior members of the community and the very wealthy, but everybody benefits from professional estate planning . It’s about protecting your wishes while you are alive but lack capacity (Enduring Power of Attorney) and protecting your assets and finances when you have died.

Enduring Power of Attorney

In New Zealand one essential legal instrument to play a significant role in effective estate planning is the Enduring Power of Attorney (EPA) .

What is an Enduring Power of Attorney (EPA)?

It’s a legal document that appoints an attorney or attorneys (you handpick someone you trust implicitly and who understands your values and wishes) to act on your behalf if you can’t or don’t wish to. It’s a safeguarding mechanism to protect you during unforeseen events – if you have an accident or suffer from an illness that impacts your ability to run your own affairs.

There are two types of EPA, you can choose either one or both:

Property: this is where your financial affairs and assets are managed for you. For example, paying bills, managing your home and handling investments.

Personal care and welfare: this is where you can make decisions now about your future care and personal health and wellbeing should you loose capacity.

How does an EPA help with estate planning?

Without an EPA in place, if you were to lose mental capacity, a loved one or relative would have to go through a lengthy and costly legal process to obtain the legal authority to make decisions on your behalf. This process, known as an application for welfare guardianship or property management, can be time-consuming, emotionally draining, and may not necessarily align with your wishes. Without careful planning you risk a court making decisions against your personal beliefs.

Appointing a trusted individual to manage your affairs when you are unable to do so ensures your interests are protected, decisions are made in accordance with your wishes, and the potential for financial exploitation is minimised. Engaging in estate planning simplifies the administration of your affairs during challenging times. Seek professional legal advice to draft an EPA to align with your unique circumstances and goals.

How do you get an EPA?

Weston Ward and Lascelles are a Christchurch law firm with extensive experience of setting up EPAs. We work closely with clients to understand what they want their EPA to achieve, and what they want to avoid. Before your first appointment consider:

Who do you want to appoint as your attorney for Property and who you wish to appoint for Personal Care and Welfare (it does not have to be the same person, or we can represent you if there is no one you implicitly trust).
Which assets will need attention? Do you have a property/properties? Do you have money owed to you? Do you have debts?
Do you want conditions to be applied to the EPA? For example, should the attorney provide annual reports to family members? Should the attorney consult with certain people before decisions are made?
Do you wish to appoint another ‘back up’ attorney in case your first choice is unable to continue with their duties?

Because we are a multi-disciplinary law firm, you also have access to the best legal advice to ensure your assets are held in the most tax efficient and beneficial way – whether that’s advice from Weston Ward and Lascelles’ Christchurch Business Lawyers for succession planning or taking advantage of our Will writing service to ensure your assets are protected after death and distributed in the way you intend.

Estate planning: What you can do today?

If you Google ‘estate planning NZ’ and scroll past the paid advertisements, you will note there are many thousands of search results. The lion’s share refers to how to divide and protect your assets through estate planning, Wills and Trusts; but what they don’t do is give practical guidance as to how you can organise and manage your affairs while you are living so those dealing with your estate can do so easily, efficiently and at minimal expense.

Organise important documents

Although we live in a digital age, there are still some paper documents that remain important. Collate your important documents and keep them together in a file in a secure place at home and/or at your lawyer’s office. Important documents include:

A copy of your most up to date Will
Your birth certificate
Land titles and mortgage agreements
Copies of insurance policies you have
Superannuation details
Details of your bank accounts
Details of the property you own and any investments you may have, and who to contact about them (include reference numbers)
Instructions about how to distribute any personal belongings that are not recorded in the Will
Details and passwords of online accounts (see below)
A list of organisations to inform about your death
A list of regular payments or subscriptions to cancel

Protect digital assets

Trying to retrieve digital information after someone has died is time consuming and stressful. Many of the larger platforms have now made provisions for their users to designate a third party to control their profiles should they die. So rather than having to update your important document file each time you change a password, you can specify who you wish to have control of your accounts and digital assets. For example, Facebook has created a legacy contact option and similarly Google operate an inactive account manager so your nearest and dearest can access accounts when you have died.

Weston Ward & Lascelles’ Christchurch Family, Wills and Trust lawyers sympathise with how planning for one’s death may be out of your comfort zone, but experience has taught us how necessary it is to dot the i and cross the t to have your wishes fulfilled. To learn more about how we help to protect you and distribute your assets, click here or call us today on 03 379 1740 to arrange for a no-obligation chat.

Why Put The Family Home into A Trust

Tue, 28 Mar 2023 00:12:32 GMT

If you are in an industry where you;

Employ staff;
Have creditors;
Are at risk of being sued.

It is highly recommended that you have a trust. A trust can provide the following;

Creditor and Asset Protection

You should consider having a trust if you are in an industry where you could become bankrupt and have creditors. Assets that are beneficially owned by somebody else, then notwithstanding they may legally be in your name as trustee they are (subject to some exceptions) safe from your creditors. It is common for a trust deed to exclude any beneficiaries that are bankrupt. Hence, this can prevent successful claims against any property that is owned by the person or who may receive a benefit under the trust.

Tax Savings

The trust tax rate is currently 33% and is due to increase to 39% on 1 April 2024. A common business structure is to trade under a company and the trust would own the majority of the company’s shareholding. The director would be paid a director’s salary and any excess profits would be paid out to the trust and taxed at the current trust’s income tax rate. However, trust’s income can be distributed to beneficiaries who may have lower tax rates and they may claim beneficiary expenses, which can be offset against their beneficiary income. Furthermore, any minor beneficiary under the age of 16 can have a $1,000 of trust income allocated to them tax-free each year.

Flexibility

A trust can last up to 125 years and it is difficult to forecast the needs of beneficiaries over such a long period. A discretionary family trust provides flexibility to cater for different beneficiaries needs at different times in their lives.

Protect Your Children from future Relationship Property Claims

By putting your assets into trust, you are a long way towards protecting any children you may have against the danger that:

Half of any inheritance they may have otherwise have received from you, being claimed by an ex-partner from any failed relationship they may be unfortunate enough to suffer in the future.
One of you dies, the other gets into a new relationship that:
Fails and leaves half of his or her wealth (i.e. your children’s inheritance) to the ex-relationship partner.
Produces more children with the result that again your children’s inheritance is reduced by virtue of now being spread over more children than just those produced by the two of you.
If your assets have been effectively transferred into a trust they no longer belong to you and cannot as such be claimed by a new life partner as relationship property and subject to splitting. This is a useful way of helping ensure that your assets are protected from claims by any future partners. However, a trust is not as robust as they once were and can be subject to claims against their validity. To mitigate such claims a contracting out agreement should be entered into and the trust should have regular meetings, lease documentation and accurate records.

What is a Family Trust?

A family trust is a mechanism for holding assets where property is put into the name of certain people “trustees” (usually you) who hold the property for the benefit of someone else (the beneficiaries, which would usually include you). It is important to understand that although creating a separate asset holding mechanism, the trust itself will not, unlike a company, have any legal existence separate from the trustees. The trustees are, essentially, the trust. The trustees can only use and deal with the trust assets for the benefit of the beneficiaries and cannot treat the assets as their own.

How does the process work?

We will have a no obligations chat with you.
If you decide to proceed, we draft a letter to you and your accountant with our proposal.
We can put you in touch with a mortgage adviser so you can begin putting an application to the bank (if required).
Once we have the approval from you, your accountant and your lender, we can then implement the proposal.

Digital and remote signing

In some circumstances, we can provide our services remotely and have some of the documents signed digitally.

Restructure usually pays for itself.

Clients tend to find these exercises will usually pay for themselves in the long term due to reducing the chance of successful creditor claims and being able to allocate trust income to beneficiaries on lower tax brackets.

The fee for the trust formation can usually be covered (partly in or in full) by the cash contribution offered by the bank when you refinance to them. A cash contribution is where the bank pay you monies as a token of appreciation for using their services. The cash contribution amount is usually 1% of the borrowing. A condition of the cash contribution is that you stay with the bank for a period, which is usually three years or so.

From here:

Please feel free to call the office for a no obligation chat to discuss your situation and requirements.

Alternatively, you can email us or complete the form below, in which we endeavour to get in touch with you within 24 business hours.

Subdividing: what do I need to know?

Thu, 16 Mar 2023 00:44:41 GMT

If you're interested in creating some extra income, subdividing land is an option to consider. Developing land is an attractive proposition. It has the potential for great profit and can increase the worth of your property. However, you do need to conduct a comprehensive market analysis and due diligence.

The process of subdividing land involves taking a larger plot. This plot is divided to create separate plots with their legal titles. These plots can then be resold or developed. In some cases, you can make a substantial profit, while in other cases, the profits may be more modest.

Profit is reliant on the size of the plot, the location, finance, and the demand for the land. Making a profit from subdividing a section may appear simple on paper. However, do not underestimate the complexities of New Zealand property laws and regulations. Weston Ward and Lascelles Christchurch Property lawyers share tips for successful subdivision projects:

1. Examine the amount of (supply) and interest (demand) for real estate in the region you are considering. Learn the median costs, and length of time properties remain on the market, and gain knowledge of the local Canterbury housing market. How long will it take to sell the sectioned-off piece of property - 31 days or 300 days? Remember, time is money!

2. Surveyors, civil engineers, planners, geotechnical engineers, environment and sustainability consultants, legal advisors, and financial advisors are all involved in subdivision projects. Do not scrimp on consulting professionals at each stage of the project to avoid nasty surprises. For example, a misunderstanding about how you structure the deal could have severe tax consequences.

3. Think ahead about how you plan to exit the business. Will you sell, keep growing, or do a combination of both? Consult an accountant and expert tax advice before signing any agreements. It is best to seek legal advice to determine the most beneficial business structure for subdivision . Doing so can help you save a lot of money in the future.

4. Become familiar with the Record of Title and the council's Land Information Memorandum (LIM) report. Doing so will help you confirm if a site is suitable for subdivision. Each Canterbury has its regulations regarding section size, setbacks, frontage, overlays, floor space ratios, easements, water runoff, tree preservation and other aspects of construction.

5. Precision is vital for the project's success and planning for the worst-case scenarios is vital. Take into account all necessary expenses including council fees, services, specialist legal advice, and loan interest.

While subdividing can unleash significant profits, rarely is it easy – and if it is easy, there is a team of highly experienced specialists in your corner. The good news is that through Weston Ward and Lascelles, you have access to a host of multi-disciplinary legal services all under one roof who are with you every step of the way. Click here or call 03 379 1740 – whether you have found the ideal section or need further subdivision legal advice – we’re here to help.

Do you have to be rich to have a family trust?

Tue, 14 Mar 2023 00:17:26 GMT

When you think of 'family trust', you imagine wealthy people with fancy boats, helipads, and other luxurious things. You also think of family fights, power struggles, and the dislike for the family member who is seen as different. Family trusts are a good way to protect and share wealth while you are alive and after you die. They can help with taxes and are not just for people with a lot of money.

Depending on your financial situation, you can set up a family trust to manage assets such as property, investments, and cash. This helps protect your family's assets from creditors. It also ensures that they are managed well. Additionally, it ensures that they are passed on to the next generation in an organized manner.

Setting up a trust is a good way to safeguard your family's wealth, but some believe it's only for the wealthy. This isn’t the case.

What is a family trust?

A family trust is a fiduciary duty imposed on trustees who hold trust property on behalf of beneficiaries. A trust is formed when assets are transferred to trustees. The trustees are responsible for managing the trust and following the directions of the creator. Usually one of these directions is to make payments from the trust to named beneficiaries.

It is imperative you seek legal advice before setting up a trust. It’s a precise process requiring careful drafting and clarification. Indeed, if you have any involvement with a trust, it is advisable to seek specialist family trust advice. The new Trusts Act exposes Trustees to be held personally liable for serious misconduct and/or not acting in good faith.

When is a family trust a good idea?

Should the average person consider a family trust, or is it primarily for individuals with significant assets or complex financial situations?

Do you:

Own a business ?
Have children that are needing help get onto the property ladder?
Have a new relationship?
Have a vulnerable family member that cannot manage their finances?

If you answered yes to any of the above, it may be worth setting up a family trust. Trusts protect the settlor's assets from creditors, reducing the risk of losing the home if the business fails. Family trusts can protect assets in failed relationships, marriages, or civil unions , but their strength has diminished.

Aside from protecting assets, trusts are also a valuable tool to financially protect vulnerable loved ones:

To provide long-term financial support to people who can’t manage money.
To provide for under-18s who are not able to manage their finances.
To manage funds for people who lack mental capacity.

If any of these points have hit home and made you reassess whether a Will is enough to protect and distribute your assets, a family trust may be the best solution. Consult a trusted lawyer to see if a family trust is right for your situation.

Weston Ward and Lascelles family trust lawyers Christchurch team have years of experience in dealing with all aspects of estate planning. Our team offers legal services in Christchurch and throughout New Zealand, including wills, probate, family trusts, tax planning, and asset management. Contact us today or call 03 379 1740 for a free no-obligation chat.

Guidance for a Christmas and holiday separation

Thu, 22 Dec 2022 02:32:13 GMT

Christmas is the time of year when the schools shut, people make the most of the public holidays and take an extended break, and friends and families reunite to celebrate together. However, for many people, Christmas is not the season of goodwill.

Separating from a partner or spouse is always difficult, no matter what time of year, but Christmas can be a catalyst for separation: finances are stretched, there’s an opportunity for frank relationship discussions and spending more time together can cause bubbling resentments to come to the surface.

5 Steady steps to separate

If you are in a position where things are coming to a head, what can you do?

1. Ensure your safety

It is essential you and your children are safe. If, at any point, you feel unsafe before or during the separation process, contact our family court lawyer Christchurch team to make an urgent application for a Protection Order.

2. Get your ducks in a row

Throughout your relationship you are likely to have accumulated possessions and various liabilities. You need to know what the household’s financial position is. Couples typically keep papers in one place, so it’s important to take copies of all relevant documents relating to assets and liabilities - this is especially important if your partner has run the finance side of things during your relationship.

f it is you instigating the separation, collate the document copies before you have the conversation about separating, even if you intend on staying in the property.

3. Make a list

Make a list of valuable things and record their values at the date of separation. Note property that was bought through individual effort, assets that pre-date the relationship, and any inheritances or gifts. Often it is the division of assets or relationship property that causes the most animosity and long-lasting financial damage to split couples and families.

4. Understand what is important to you

When you separate all aspects of your life will need to be considered: your children, your home, the dog, the car, and never mind all the smaller day-to-day assets. Spend time reflecting on what is important to you.

Everyone has very different ideas as to what has sentimental value. There may be things you are happy to part with, and others you do not want to give up under any circumstance. This information helps shape your Separation Agreement; after all, Weston Ward & Lascelles Christchurch family lawyers can only get the best legal outcome for you , if they have a true picture of what is important to you.

What’s included in a Separation Agreement?

1. Confirmation you have separated

2. The official date of separation

3. Confirmation of joint assets

4. Confirmation of what assets are relationship property, and which are individual

5. The agreed division of relationship assets

5. Book an appointment with a family lawyer

Like many of the best family lawyers in Christchurch, Weston Ward & Lascelles find January and February are the busiest times of the year. Enquiries for divorce and dissolution lawyers and requests for legal separation advice are consistently high during these months, so it’s always advisable to seek legal advice as soon as you have made your mind up to separate.

Our family lawyer Christchurch team are here to support, guide and reassure you through the difficult process of separating. Our cost-effective and high-quality legal advice helps people achieve the best possible outcome for their current and future circumstances. Contact us today to see how we can help you.

NZ Business Structures – What is the best business structure for you?

Thu, 17 Nov 2022 03:41:43 GMT

Starting a business is an exciting time, but it is important to have your business set up correctly. We are a highly experienced firm and focus on setting up small to medium sized businesses.

These are the three most common types of business structures:

Sole Trader

A sole trader operates a business in their own name and is personally liable for the business. This is suitable for a person who is self-employed or small business owners with a limited number of employees and low risk activity.

Partnerships

A partnership is where two or more individuals or entities jointly share the benefits and liabilities in the operation of the businesses. It is encouraged that when you are in a partnership that you have an agreement between the businesses.

Limited Liability Companies

This is the most common and popular type of business structure operated by small to medium businesses in New Zealand. The company is a separate legal entity in its own right and is separate from its directors and shareholders. Any debt sustained by the company will usually not be imposed on the directors or shareholders. It is common for partners to enter into a shareholder agreement or buy-sell agreement, which outlines all their rights and duties as between them.

The Company’s Shareholding

The shares in the Company can be owned by you personally or by your Family Trust. If the company generates any profits, these profits can be paid out to the shareholders.

A shareholder’s salary can be paid out to the shareholder personally, which will be taxed at that person’s relevant tax rate. The company can pay out dividends to the Trust, which will be taxed at 33% (the current rate at the time of writing this article).

The benefit of having the Trust owning shareholdings in the company means that any profits can be paid as dividends to the Trust and then disbursed to the beneficiaries. If any income is disbursed to the beneficiaries, they can offset their expenses against this income.

Obviously, the Trust owning shareholdings in the company can have some significant taxation benefits. However, this cannot be the sole reason for the Trust purchasing shares in the company, as this will be labelled as tax evasion.

You would need a legitimate commercial reason for doing the transfer, such as restructuring, commencing a new business, a joint venture, and so on.

Please note, this article should not be construed or relied upon as legal advice. It is also important to discuss with an accountant which structure is right for you in relation to taxation matters. If you have any questions feel free to call or email our Christchurch business lawyers for further information.

Can a parent stop a child from seeing the other parent?

Fri, 23 Sep 2022 03:20:10 GMT

Being a parent is an emotional rollercoaster. Being a parent in the aftermath of a separation or when a marriage or civil union dissolves is another level. It’s tough going. The stresses of negotiating a relationship property agreement and separation agreement often pale into insignificance when it comes to issues surrounding the custody and access of children.

It’s very normal to feel bitter, angry, and frustrated when a relationship fails. However, it is crucial the child or children’s best interests are at the forefront of your mind with every interaction you have with them and your ex.

In our role as family lawyers in Christchurch , we are often asked ‘can my ex stop me from seeing my child?’. There are typically three scenarios that provoke the question:

1. The parents are no longer together, and the child lives with one parent. The parent with whom the child lives is actively limiting the agreed contact time between the child and the other parent.

2. The parents have an agreement on visitation and contact time, but the child is unwilling to see the non-residing parent, who believes the other parent is encouraging the behaviour.

3. The parents have an existing Court Order, but one parent is not complying.

To answer the question in short, the answer is no: legally a parent cannot stop the other parent from seeing their child. There are exceptions such as the child being abused or child abduction (in which case an urgent custody order application to the Family Courts must be made), or there is a Parenting Order made in the Family Law Court to the contrary.

What can you do if you are stopped from seeing your child or want to stop a parent seeing their child?

It’s important to seek early legal advice from a Family Lawyer, no matter which scenario above applies to you. It will save you time, money and stress in the long run.

Unless there is risk of harm to your child and if circumstances allow, Weston Ward & Lascelles strongly encourage clients to seek an alternative dispute resolution before even thinking about Court. A breakdown in communication amplifies emotions, so it’s incredibly helpful to identify and define the matters in dispute and discuss the issues constructively.

For example, if contact is restricted because a parent believes the other does not share their parenting courses skills, it can be an area of conflict. But if the parent is capable and does not endanger the child, the restriction maybe unjustified. The conflict can be resolved through parenting classes or financial agreement to moderate behaviour.

Be mindful that Family Courts recognise both parents play an important part in helping a child’s mental, emotional, physical, cultural, and social development. If an agreement can’t be negotiated. The Family Court will make decisions on the child’s behalf – sometimes their terms are not as agreeable to the parents as the ones proposed in mediation.

Weston Ward & Lascelles have extensive experience of helping our clients navigate the Family violence Law matters to achieve the best outcome for all parties, but especially for the child. Our Christchurch family lawyers serve our clients with a deep level of compassion, care and understanding. If you need some legal advice or wish to discuss your circumstances, contact us today.

Building contract disputes & how to survive them

Sun, 04 Sep 2022 22:07:20 GMT

Having any building work carried out on your house is highly stressful, there’s no aspect that doesn’t have the potential for drama even if all goes well during the process. Why is it so stressful? Firstly, because it impacts your home, the place that provides you and your family shelter, and secondly because it invariably involves large amounts of money.

To protect your build (and your sanity) it’s important to get the i's dotted and t’s crossed on the construction contract and agree a scope of works before any construction starts – this is to protect both parties. You should also check that your current house insurance covers any renovation works. If you’re building, the vendor will usually have a contract works policy where your bank will be nominated as the financially interested party. As experienced building contract lawyers in Christchurch NZ, many of our clients living through a building contract dispute could have avoided much of the strife had they sought legal advice at the contract stage, or any point before crisis hit.

The relationship between client and contractor balances on a fine line and can easily turn bitter. Unexpected delays, price variations, poor installation, miscommunication, under-delivering or even the company going bust are the ingredients for a building contract dispute.

Get organised

Every building project benefits from you being organised whether there is a dispute or not.

Collate all the paperwork and documents in one file. These include the quote or estimate, the contract, Disclosure Statement and Checklist, letters, emails, copies of text messages, and invoices etc.
Create a timeline of key events and record the dates of first contact, quotation, commencement of work, correspondence, and incidents.
Take photographs throughout the project. Date before and after pictures and annotate with what is wrong with the works.

Talk to the builder

In a builder contract dispute the first step is to communicate with the building firm – email is the best way so there is no room for confusion about what has been discussed. State the issues, how they conflict with the contract and agreed scope of works and iterate the resolution you would like.

During any communication it’s important you remain objective, amicable, and civil. Many disputes and complaints are the consequence of misunderstandings and miscommunication between the client and the contractor.

Steps to resolve a continuing building dispute

If you remain unhappy with how the issues have been addressed by the builder or contractor, the next step is to follow the dispute resolution process stated in the contract – assuming there is one.

Whether the case is a breach of contract, or the challenges have arisen from unclear drawings, specifications, a lack of contract or the terms have been varied without sufficient documentation, it becomes more complex. At this stage of the dispute, legal advice is critical to resolve the dispute and seek a remedy.

Escalating a construction dispute

The reality is nobody wants to enter into litigation and there are other options to exhaust before going to Court, but both parties must be open to pursue a remedy through these channels. These include:

Negotiation: when a resolution or agreement is reached between the parties or through their lawyers. This is common and the most cost effective option.

Mediation: (if included in the contract terms): an independent mediator is appointed to help parties reach an agreement. The process is confidential and the outcome enforceable as a new contract between the parties.

Arbitration: (if included in the contract terms): following failed mediation, an independent arbitrator decides the case on the evidence provided. The process is confidential and the outcome enforceable, final, and binding.

If you are experiencing difficulties with your builder or contractor, it’s critical to seek legal advice from a builder dispute lawyer, so you understand the options available to you. Weston Ward & Lascelles are dispute resolution lawyers who support our clients throughout the whole process. Contact us today to discuss your case call 03 379 1740 or click here to message.

STOP: I can’t complete a house purchase

support@digitalpresence.co.nz (Simon Mullinger) — Wed, 13 Jul 2022 04:12:46 GMT

Buying a house is a big deal, it’s a major milestone for most people, and worthy of a celebration, but if you find yourself having second thoughts about a property or are wanting to back out of a property deal completely, celebrating will be far from your mind.

When can I stop a house purchase?

A signed Sale and Purchase Agreement is a legally binding contract between you and the seller, which becomes unconditional once the allocated time for meeting your conditions has been reached. When a house purchased in an auction, the contract is unconditional at the drop of the hammer. An unconditional agreement is extremely difficult to end without being sued by the vendor. Prior to entering into an agreement, it is highly advised that you let a property lawyer review the agreement prior to signing it.

You should not be relying on your pre-approved finance as being a bullet proof, these may only be active for a certain period and afterwards you may have to reapply. You need to keep this in mind if the settlement date is after your pre-approval expiring, as you find that your finance is declined when you reapply.

What are the consequences of pulling out of a house purchase?

People pull out of property deals for many different reasons. Lack of funds, a change in circumstances such as losing your job. This can result one or all of the following happening;

Forced to buy the property
Lose your deposit
Pay interest from the day of settlement (check the Sales and Purchase Agreement for interest rate)
Cover vendor costs for reselling the property and the difference in the sale price

Weston Ward & Lascelles have decades of experience advising clients on property law and conveyancing in Christchurch NZ . Helping people purchase their dream home is the ideal scenario, but the other side of the coin are the people who are unable to complete a purchase. It is a distressing and stressful time for these clients, and our property legal team work to achieve the best possible outcome so they can move on with their lives.

If you would like any advice about your situation, our free pre auction package review, or Christchurch conveyancers, please call 03 379 1740 for further information.

Selling your property in 2022

support@digitalpresence.co.nz (Simon Mullinger) — Wed, 13 Jul 2022 03:34:34 GMT

There is a definite chill in the air in New Zealand residential property auctions. Demand has weakened, sale rates are down, and the annual price growth is slowing yet residential property prices remain high. Many vendors are questioning whether now is the right time to sell and some may have no choice.

Do I sell privately or through an agent?

There are advantages and disadvantages to both options; we have covered this in a previous blog. Ultimately, it will depend if you are pressured to sell the property and if you have a realistic price expectation.

You can decide on whether you sell the property via deadline sale, tender, or auction. All of these options will conduct open homes for a set period and then have a date for the deadline sale, tender, or auction. The deadline sale will accept conditional offers and the tender process or auction will usually only accept unconditional offers.

The tender and auction files will usually include a copy of the LIM and building report that has been obtained by the vendor. This allows the purchaser time to conduct due diligence (or their lawyer!) prior to submitting an unconditional tender or offer in writing.

Accepting an offer

Some properties may turn it at auction; however, they may still have interested parties that may not be in the position to put down an unconditional offer. Many purchasers that are obtaining finance may require a valuation for their lender. Hence, they may need to submit an offer that is conditional on finance.

You need to be aware of accepting an unconditional offer with a late settlement date and low deposit. Due to the volatility of the market, you do not want to be in a position where the purchaser fails to settle.

There are actions that you can claim against the purchaser for failing to settle such as;

Penalty interest
Claim for loss of the deposit
Loss of value

However, you need to keep in mind if the purchaser is a company, they may not be solvent at the time of settlement. Hence if they default, you may have very little recourse, if any, against them.

Weston Ward & Lascelles’ team of property lawyers has helped thousands of Christchurch clients successfully buy and sell a property. We urge you to seek legal advice at the beginning of the property selling process to help lower the risk of issues arising and to protect your current and future financial positions.

There are many different elements that influence which is the best course of action, so contact us today to learn how our property legal services can help you.

UPDATE: Accredited Employer Work Visa

support@digitalpresence.co.nz (Simon Mullinger) — Mon, 23 May 2022 22:43:13 GMT

The first stage of the new “Accredited Employer work visa” system went live yesterday and Immigration lawyers and advisors are all go!

In case you are somehow still out of the loop, from 4 July 2022 all employers wanting to support migrant workers for a visa application will need to be an Immigration New Zealand “Accredited Employer”.

For most businesses, getting Accredited will be a relatively straightforward process. You will need to declare that your business is financially viable, is compliant with all New Zealand employment and immigration laws, is committed to supporting your migrant workers and will complete a series of online employment modules (and will let your migrant employees do the same).

However, if your business places migrant employees with a third party (i.e. if you are a labour-hire company) or is a franchisee, then you will need to meet extra requirements before your business can be Accredited.

Once your business is Accredited, there will be additional steps before you can hire migrant staff. First, you will need to advertise the role you want to fill (called the “Job Check”) and submit the results of the advertising to Immigration New Zealand. Job Check applications will open on 10 June 2022. Your business will not need to complete the Job Check step if the role pays twice the median wage ($55.52 per hour) or is on the Green List of skill shortage occupations ( https://www.immigration.govt.nz/new-zealand-visas/apply-for-a-visa/tools-and-information/work-and-employment/green-list-occupations ).

If the Job Check is approved, then your prospective migrant employee will need to submit an application for the new Accredited Employer work visa. Accredited Employer work visa applications will be open from 4 July 2022. From this date, you will only be able to support migrant workers for visas under the Accredited Employer work visa.

Get in touch with us as soon as possible if you want to know more about Accredited Employer work visa and what it will mean for your business!

Is this Possible to Buy a House Without Savings?

support@digitalpresence.co.nz (Simon Mullinger) — Wed, 20 Apr 2022 00:47:06 GMT

How much deposit do you need as a first home buyer? This really depends on what your budget is for buying a house in New Zealand. For example, your first home deposit may be less if you are buying a house in Christchurch instead of Auckland.

The process of buying a house will usually begin with you needing to organise your finance and working out what you can afford for your first home. You can begin by contacting your bank or a mortgage adviser so you can have an indication of your budget. A mortgage adviser is paid a commission by the bank and deals with multiple banks on a regular basis.

The majority of first home buyers will take out a mortgage to buy a house in New Zealand. If you are taking out a mortgage with the main bank, they require you to have security (i.e. your own savings/deposit and permanent employment) in order for them to give you a loan. The bank will take the property as security for the loan.

Most main banks require a 20% Loan to Value Ratio (LVR) for your main home. This means if you were to take out a $600,000 loan the bank would require a deposit for a first home buyer of $120,000.

Let’s be clear a deposit does not have to be your own savings either, depending on your circumstances you could buy your first home with no deposit at all. Your first home buyer deposit could be made up of the following your savings, your inheritance, a family loan, a gift, cash, your KiwiSaver, and the Kainga Ora Home Start Grant.

The property prices in New Zealand have skyrocketed over the past two years, making it extremely difficult for first home buyers to get a deposit together to obtain a loan. In addition to the recent changes to the new lending rules in New Zealand, this has made it more challenging for the majority of purchasers to obtain a home loan.

These new lending rules are regulated under the Credit Contracts and Consumer Finance Act (CCCFA). These changes require buyers to still have a deposit, which is now significantly higher due to the significant increase in property prices over the past two years.

In addition, the new lending rules require the buyer to have a significantly higher surplus income after expenses. Some of the main banks are allowing some first home buyers to have a minimum LVR of 10%, however, they require your monthly income after expenses to be significantly higher. This makes it challenging for first home buyers to obtain finance.

If you’re in a situation where you have the serviceability but require more security, you could potentially look at loaning monies from a family member or restructuring assets so you then have the security. This means you could purchase a home and not actually have a deposit saved, rather it could be loaned. Then in time you could then look at refinancing and repay the deposit loan with the equity you have gained in the property and any savings.

You can consider it from the perspective that the monies you were paying on rent and are now going towards your mortgage and home expenses and the monies that you were using to save for a deposit can go towards the repayment of the loan on the deposit. The first thing you should do is contact your bank or preferably a mortgage broker and get them to evaluate your financial situation.

It is potentially possible to buy a house in New Zealand with no deposit at all, however, everyone’s circumstances are unique and require expert advice from a property and trust lawyer and independent financial advice. Please feel free to contact our team for any enquiries in relation to buying your first home, restructuring your assets and succession planning needs.

Property Market NZ – Buying a House in New Zealand 2022

support@digitalpresence.co.nz (Simon Mullinger) — Wed, 20 Apr 2022 00:37:22 GMT

The property market in New Zealand has seen house prices increase over the past two years, it is unknown what the property market will do in 2022. Many buyers have become burnt out with attending open homes and continually losing out on buying a house. The new lending rules have also had severe consequences on many people, especially first home buyers, self-employed and people with low incomes (even if they have high equity in their existing home). It may still not be impossible to get into the market, upgrade your home or even leverage to start your own rental portfolio. Here are five points that you need to consider when buying a house in New Zealand in 2022;

1. Sort out your finances

COVID-19 has made many people aware that they don’t have access to large savings or funds. The new lending rules have also made it more difficult for consumers to obtain lending. Many of the main banks require a higher LVR (Loan value ratio) and higher incomes to service the loans, this has resulted in many consumers being unable to obtain loans or their pre-approvals being significantly cut. This has resulted in some consumers turning towards non-bank and second tier lenders. The key take from here is to have a strong understanding of your finances and your lending abilities before embarking on the buying a house process. It is best to get in touch with a reputable mortgage advisor. If you don’t have one, we can put you in touch with a mortgage adviser.

2. Your deposit and or security

In order for a lender (i.e. a bank) to loan you monies, they require the borrower to have a deposit of monies. In exchange for the loan, they will take security over the house that you have purchased by registering a mortgage over your property. If you already own your own home, you may have sufficient equity in your property to use as security for another property. To obtain a loan the lender will require you to have your own deposit, this does not have to necessarily be your own monies either. It may be worth considering family succession planning or doing a joint venture with someone who has equity but they may not have the serviceability. You may be able to get onto the property ladder sooner than anticipated. The key take from here is to seek independent legal and taxation before combining any assets and ensure you have the best ownership structure.

3. Due Diligence

Whenever you purchase a property it is extremely important that you do your own due diligence. It is alarming the amount of purchasers that don’t do this. Especially if you go to auction as if you’re the successful bidder the contract is unconditional, we recommend that you get one of our Christchurch property lawyers to look over your auction review package before going to auction.

4. Buying a property in Christchurch

If you’re looking at buying a house in Christchurch, and it was built prior to the 2010 and 2011 Christchurch Earthquakes you will need to ensure the house is structurally sound. The EQC documents will need to be reviewed. The vendor’s agent should have an understanding of the property’s EQC history. You will also need to check that you can obtain insurance for the property. Before attending auction or signing a sale and purchase agreement we recommend that you allow one of our property lawyers to review what you are going to sign.

5. Exit plan

Many people don’t consider this aspect of selling the property they are purchasing. This raises many issues such as should it be owned by you personally or your family trust ? What happens if you have a job relocation will you sell your home or rent the property out? If you lose your job, will you be able to afford your mortgage repayments? If you forced to sell the property, would you make a loss or break even? We have also seen unfortunate circumstances where home owners were relying on the equity in their home and sold their current property. They intending on purchasing another property that was cheaper than the home they just sold, but were unable to obtain lending. This has resulted in them needing to find temporary accommodation. The key note from this is to have your finance sorted and not rely on the fact that you have equity in your property.

Looking at selling or buying a house? Get in touch with one of our Christchurch property lawyers who can assist you with the buying a house process in New Zealand.

NZ Trust Law Changes

support@digitalpresence.co.nz (Simon Mullinger) — Mon, 11 Apr 2022 00:49:41 GMT

The New Trusts Act

The new legislation has been in place for over a year now which has allowed some development of thinking around the practical implications for trustees.

These include;

Mandatory trustee’s duties which require amongst other things the holding and understanding of all trust documentation, including any expressions of the settlors wishes, which are now given a real emphasis.
Unless certain criteria are met a requirement to notify all beneficiaries (even if considered to be only “back-stops”) of the fact that they are beneficiaries under your trust.
Certain default duties which unless excluded, will by law be deemed to apply. Examples of default duties causing trustees particular problems include;
To invest prudently, which definition would usually exclude tying up most of the trusts wealth in the family home.
Not to exercise trustees power for own benefit, which makes it difficult for a trustee who is also a beneficiary to allow him or her self rights of occupation of the family home now held in trust.
To act impartially between all beneficiaries, no matter whether or not some were only included in the first place to give the trustees some flexibility and as a fall back position to operate only if everybody else originally intended to take was dead!

A failure to comply with the above puts a trustee at risk of being sued by a disgruntled beneficiary.

If you wish to discuss;

If a settlor, recording your wishes as to priority of beneficiaries and who should and shouldn’t be told what.
If a trustee, understanding your duties and/or excluding the default obligations.
Or anything else

Trust Busting

In recent history there have been two significant court cases of note for those seeking to “ring fence” assets by putting them into trust. The first is Clayton and the second is Preston. In brief, these cases say if you put assets into trust and then get married (but it seems inevitable that this will extend to any form of personal relationship), if you do anything a Court can consider a “settlement” in favour of a “spouse” the Courts will consider that an invitation to treat your trusts assets as relationship property and to let the proverbial “bull loose in the China shop”.

“Settlements” can be doing as little as adding your spouse or step-child to your trust as an additional beneficiary, acquiring an asset and/or in some situations even just refinancing.

If wishing to “share” with your spouse going forward, make sure you do that personally and do not involve your trust.

The New Trust Act and Wills

The new Trusts Act applies to all trusts, whether created during a lifetime or after death under the terms of a will. This means the days of a trustee/executor under a will waiting to be told what to do, assuming somebody else has things under control and generally being “asleep at the wheel” are over.

There are mandatory duties, as well as default duties that if not excluded are also deemed to apply and if you are not aware of those and/or do not act in accordance therewith, then notwithstanding the fact you only agreed to become a trustee/executor as a favour to a friend, you could end up getting sued.

If you wish to discuss with our Christchurch family trust lawyers what you need to know about being a trustee and executor then please feel free to contact us on 03 379 1740 and ask for David or email us on djh@wwl.co.nz

Child abduction legal advice in NZ | Weston Ward & Lascelles

support@digitalpresence.co.nz (Simon Mullinger) — Fri, 18 Feb 2022 03:37:02 GMT

According to 2021 data from the longitudinal study Growing Up in New Zealand, one in seven Kiwi children have separated or divorced parents with co-parenting a way of life for many families.

It’s hard work to create a healthy and effective co-parenting relationship. Past hurts and grievances must be put to one side to collaboratively make decisions in the interest of the child or children. Typically, both mum and dad are joint guardians of the child and this special relationship between separated parents is protected under Section 16 of the Care of Children Act 2004. By law they must communicate to each other any important information as to where the child lives, their education, religion, and medical treatment. This means that if one parent wishes to relocate and leave New Zealand, the other parent’s consent must be agreed.

With global travel (Corona aside) being more accessible and inexpensive, the greater freedom of movement has increased the opportunity for relationships to develop between people from different countries of origin. Unfortunately, this has led to a rise of child abduction cases following the breakdown of relationships and a parent’s wish to return to their home country. One parent feels trapped in a foreign land, while the other doesn’t want to lose contact with their child – it’s a distressing situation for all parties.

What is child abduction?

Unlike kidnapping, which is when a stranger takes a child, child abduction is when one parent takes a child overseas without one of the parent’s express agreement, and yes, this includes a holiday too.

What happens if I take my child without the other parent’s permission?

If the other parent finds out of your plans of travel, they can make an application to the Family Court for an Order Preventing Removal of a Child from New Zealand, Interpol will be alerted, and the child will be stopped from exiting. If an Order is granted it remains in place until the child is 16 (unless another Order is made in the meantime).

If you leave New Zealand before the other parent is aware, your child may be returned to New Zealand under the Hague Convention on the Civil Aspects of International Child Abduction for your case to be heard in a New Zealand Court. The consequences of child abduction are serious – for the child’s wellbeing, and for the parents emotionally and financially.

What can I do if my ex won’t agree to us leaving New Zealand?

Get in touch with Weston Ward & Lascelles . Many people in this situation fail to seek family law advice early enough to achieve remedy and resolution. Our family law mediators help parents come to an agreement often without having to go to Court. You must be mindful that Courts have a high threshold for agreeing a child can leave New Zealand, so mediation and alternative dispute resolution are crucial in these situations.

Why do I need to get legal advice if my ex agrees to us relocating overseas?

No matter how consistent and civil the interactions with your ex-partner are since the relationship breakdown, or whether they agree to your relocation plans, it is wise to get the consent recorded in a parenting agreement. Nobody knows what the future relationship between you and your ex will look like, so by seeking advice from the best family lawyers in Christchurch you are protecting your life overseas with your child and your legal position.

Parenting is the hardest (and often most thankless) job there is, but there are some things you simply cannot afford to get wrong. If you are planning on relocating or find that your ex is intending to take your child overseas, contact us today. We’re here to help you find an amicable solution either through active mediation or through the Court system. Contact our Christchurch Family Lawyer team today, for a free no-obligation chat.

Domestic Violence during COVID-19 Lockdown

Thu, 19 Aug 2021 07:58:24 GMT

New Zealand has the highest reported rate of family harm (formally referred to as domestic violence) in the developed world, with police attending one report of family harm every four minutes on average. Unfortunately rates of family harm have increased in places hardest hit by Covid 19 – especially where there are mandatory lockdowns. Sadly, New Zealand will not likely be exempt.

For people who are experiencing domestic violence, mandatory lockdowns isolate them from the people and services that could help them. New Zealand agencies are preparing to deal with a possible physical and emotional violence increase in the country during this lockdown period, as the added stress may increase family violence. Their help is available 24/7.

If you are in danger now ring 111 immediately.

The most important thing is that you and your children (if any) are safe, please reach out and contact the crisis services. Some contact details are provided below.

Once you immediately safe, we can help you to apply for a Protection Order against the person that has been violent. If a Protection Order is granted, that will provide protection from any further abuse including any contact from the perpetrator.

The Family Court is still hearing essential matters, and if you need help to protect you from an unsafe situation, the Courts will be able to deal with this, as your safety is a priority.

Do You Need Help?

If you're in danger now:

• Phone the police on 111 or ask neighbours or friends to ring for you.

• Run outside and head for where there are other people.

• Scream for help so that your neighbours can hear you.

• Take the children with you.

• Don't stop to get anything else.

• If you are being abused, remember it's not your fault. Violence is never okay.

Where to go for help or more information:

Women's Refuge: Free national crisis line operates 24/7 - 0800 refuge or 0800 733 843 www.womensrefuge.org.nz
Shine, free national helpline 9am- 11pm every day - 0508 744 633 www.2shine.org.nz
Shakti: Providing specialist cultural services for African, Asian and middle eastern women and their children. Crisis line 24/7 0800 742 584
It's Not Ok: Information line 0800 456 450 www.areyouok.org.nz

How COVID-19 Affects Parenting Agreements

support@digitalpresence.co.nz (Simon Mullinger) — Thu, 19 Aug 2021 01:40:17 GMT

COVID-19 and shared care as of 18 August 2021

New Zealand is currently in Alert Level 4; this means that there is heightened risk as COVID-19 is not contained. People are instructed to stay home, education facilities are closed and travel is severely limited. The situation presents everyone with unprecedented challenges, including the justice system.

The Government has not given any directives in relation to child sharing arrangements.

Last year, at the start of the lockdown period, Judge Moran, the Principal Family Court Judge, put in her statement, that parents "must put aside their conflict at this time and make decisions that are in the best interests of the child and their family and the wider community."

Remember Court Orders need to be followed.

What if my children are currently in my care, do I need to let them see their other caregiver?

The country is in lockdown, this means non-essential domestic travel is postponed. The Government is wanting to prevent the spread of COVID-19 within the community. For instance, if your child lives in the same community – meaning the same town or city, then if both households are practising self-isolation then the parenting agreement can go ahead as per normal.

What if my children have Supervised contact with their other parent?

The current situation may mean that some arrangements for supervised access, particularly at contact centres, may not be able to occur.

How do we reduce the risk of transmission, while sharing the care of our child?

Parents will need to exercise common sense – the main thing is to ensure that families remain within their “social bubble” and that should be as small as possible but should not be used as a reason to stop children spending time with both of their parents.

For separated parents living in the same community that social bubble might be across two homes with children moving between the homes. Care arrangements, whether court ordered or by agreement, can – and should – carry on. Remember this is a stressful time for everyone including our tamariki and keeping them in their routines is really important.

Do I have to continue to pay my child support?

Yes, you are still obligated to pay child support, however, you can seek tax relief and income assistance from Inland Revenue. You may also be able to get your income reassessed. Inland Revenue Department are offering a range of ways to assist you through this process, you are also advised to get in contact with your tax agent if needed.

What’s happening with Family Court hearing dates from now on?

The Courts, Tribunals and the Justice system fall within the definition of essential services based on the Government website. The Family Court has advised that at this stage the non-priority hearings set down for 18 and 19 of August 2021 are vacated, with new dates for the hearings being advised. The Courts will operate only in priority areas.

The Family Court has confirmed their priority areas include:

Public Health Order applications;

Without notice applications under Oranga Tamariki Act, Family Violence Act and Care of Children Act applications when they relate to family violence;

Mental Health (applications for compulsory treatment orders);

Other without notice applications: PPPR , PRA, Hague Convention; Substance Addiction.

All other matters are being rescheduled and will be provided a new date.

What if I am scheduled to go to Court?

The hearings or conferences set down for the 18 to 20 August 2021 inclusive have been vacated. The Courts are now closed to the public, the Family Court will still facilitate urgent applications. For now, please stay home and follow government directions.

PLEASE NOTE: This information is what we know at present, we will update the information when we are able to.

Our family and litigating team are working remotely from home, we are able to assist you with any legal concerns that you have in relation to family or business issues. Please don’t hesitate to get in contact with us, and remember that your child’s best interests and welfare are paramount.

Further Guidance from the Ministry of Justice

The MOJ has recent updates on parenting agreement which can be found here.

Co-ownership: the ideal housing solution or the start of a nightmare?

support@digitalpresence.co.nz (Simon Mullinger) — Tue, 27 Jul 2021 00:30:56 GMT

The New Zealand property market is hot right now, but with this heat comes extra pressures and obstacles for people to get on the property ladder, the hardest hit being the first-time buyers; Christchurch is no exception to the rule.

Saving for a house deposit has always been tricky and finance approval from the banks proving to be slow, buying a property feels very much out of reach for many. However, where there is a will there is a way; one solution that has gained traction over the past year is to pool resources and buy a property as a group.

Whether it’s a parent and child, siblings or a group of friends buying a home together, what seems like a great resolution to a finance and housing problem is not always the golden ticket it first appears to be. It’s vital you enter any shared property ownership with your eyes wide open.

Here are 4 key points you need to be aware of:

1. You are not protected by the Property Relationships Act.

When you buy a property with someone who you are not in a relationship with, it is common to have the ownership type as tenants-in-common, this means you have a defined and distinct share in the property, should one of you die, their share goes to their estate and that estate may grant to call up the deceased half share, meaning the house has to be sold!

TIP: All shared owners should have a Will in place providing for if desired the rights to continue to reside.

2. You are liable for the whole mortgage.

To get the mortgage approved all parties must be in a strong financial position but should circumstances change and your co-owner is unable to meet the financial commitment of the mortgage, you are liable for the whole debt. That is why it important to have a property share agreement in place, giving you in certain circumstances powers to force sale.

TIP: All shared owners should have Enduring Powers of Attorney and insurance policies should be considered.

3. What else needs to be agreed?

There is a large number of matters that will also need covering off indicating the share of outgoings, insurances, relationship partners, rights to stay etc.

TIP: Put an agreement into place covering these things off at the start.

4. Co-ownership effects future property purchases.

As your life moves on you may be in a position to buy another property, but a bank will recognise only your share of the house as an asset yet see the full remaining amount of the mortgage as a liability. Be aware too that your credit record is also linked to the co-owner(s) which may adversely affect future mortgage applications.

How to protect your position in co-ownership

The default position of many people entering this type of agreement is they will sort out issues as they arise. This is their first mistake. When you are investing a large sum of money it is crucial to have a property share agreement to protect your current and future legal and financial positions. This can be drafted by one of our property lawyers .

What happens if the property price rises significantly or falls into negative equity and one of you wants to sell up? How do you agree a fair evaluation? Who pays for renovation and decoration – will contributions impact the amount of sale price received?

These questions may seem unrelatable, but experience shows them to be the source of many arguments and legal costs when relationships go sour! The best property lawyer clarifies the parties’ expectations, explores and defines contingency plans and solutions before they are needed.

If you are thinking about purchasing a property as a group of individuals, (rather than because of being in a relationship), this article is written for you. Before you take the plunge, please contact Weston Ward & Lascelles’ property lawyer Christchurch team for an informal chat to see how we can help make your property co-ownership a positive experience.

Property Investors: Is the future bright?

support@digitalpresence.co.nz (Simon Mullinger) — Mon, 31 May 2021 02:34:49 GMT

After the global pandemic of 2020, 2021 was always likely to be a financial challenge for many. What wasn’t so predictable was the Government to announce changes to the Brightline Test and Interest Deductibility. The rules have been introduced to help first home buyers and people on lower incomes.

What is the Brightline Test NZ?

The Brightline Test treats any financial gain made on the sale of a residential property that was not a family home, a main home held in a trust , or a residential property that is inherited as taxable income.

The time span of the Brightline Test has changed over the years:

Within two years of being acquired, between 1 October 2015 and 28 March 2018 inclusive
Within five years of a house being acquired on or after 29 March 2018 The most recent update:
Within ten years of a house acquired on or after 27 March 2021

How will the new property rules affect me?

The new property rules include:

a) Extending the Brightline Test (tax on capital gain) from the current 5 years to 10 years.

The extension of the Brightline Test may have your attention as the greatest cause for concern; however, most people invest in property as a long-term commitment, so an additional 5 years is not typically a big issue.

b) Removing the ability to deduct mortgage interest in your annual tax return.

Losing the ability to deduct mortgage interest should be where you focus your attention, and the reason why seeking professional property legal advice is prudent.

Many clients have bank loans secured against their family home and use the equity to buy a rental property. If initially structured correctly, the surplus rental income provides a passive income, but it’s the increase in value over time that is the biggest draw – a tool to build one’s personal wealth. However, the loss of deductibility of the interest is essentially a tax on the debt and the interest rate, and a threat to cashflow.

What can I do to protect my finances?

Firstly, don’t panic. The loss of interest deduction is being phased in over four years, so there is time to improve your position. To learn more about how you can protect your greatest assets, contact Weston Ward & Lascelles Christchurch property lawyers on 03 379 174 0 for all your property needs or contact us here .

House and Land-Packages Property Lawyers WWL

Tue, 09 Mar 2021 00:39:07 GMT

How do house and land packages work?

Building companies or developers (the vendor) will offer a house and a package, this is where you enter into two contracts with the vendor;

1. A Sale and Purchase Agreement for the land, and;

2. A Building Contract

A condition of the sale and purchase agreement is that you enter into a building contract with the builder. The sale and purchase agreement will usually require you to settle the land into your own name (have the land’s title in your own name), after the land has settled the build contract will usually start after building consent has been obtained.

Should I pay the deposit for a house and land package without seeing a Property Lawyer first?

A property lawyer will always advise against this if you have not sought legal advice. You may want to know whether this deposit is refundable and any other implications of the contract.

When should I find a Property Lawyer to help me with my house and land package?

The sooner the better or before you sign. Do not feel pressured that you have to sign the building contract and sale and purchase agreement without seeking legal advice first. The contract may not have the relevant clauses added to the agreement and once you sign the agreement you may not be able to amend the agreement.

Can I use my KiwiSaver and Kainga Ora Home Start Grant for my house and land package?

You may use your KiwiSaver to go towards the deposit for the section of land or to go towards the settlement proceeds for the land. However, if you are going to use your KiwiSaver for the deposit a special clause is required to be added to the sale and purchase agreement.

You may be eligible to apply for the Kainga Ora Home Start Grant. Before you sign a Sale and Purchase agreement you can go onto Kainga Ora’s website and see whether you are eligible for the Grant and apply for pre-approval.

You will also need to be aware that there are time frames that need to be factored in when applying for your KiwiSaver withdrawal and the Home Start Grant.

What do Property Lawyers do when I buy a house and land package?

We review the title and LIM report in relation to the section and report this information to you. Most of the sections will have easements, land covenants, consent notices and other encumbrances on the title that you may need to comply with and any long term maintenance costs that you may incur. We will check with you that you are able to finance the property, but you will need to obtain approval from a bank or mortgage broker. We will also review the Building Contract for you. Once the contract has confirmed we will prepare all the documents necessary to prepare for settlement.

Feel free to contact one of our property lawyers today for further information.

DIY Law: Should you take the leap?

support@digitalpresence.co.nz (Simon Mullinger) — Tue, 02 Feb 2021 18:22:46 GMT

If you are experiencing strife in your family life and are at the stage where you need to or want to make your position legal, you most likely have had thoughts about saving money and doing the legal work yourself. You are not the first person to, and you will not be the last.

‘The only winners are the lawyers’ is a phrase people like to use whenever hiring a lawyer is discussed, and this mindset is typically a catalyst for people to do their own legal work. After all, Law is just about dotting the i’s and dotting the t’s, right?

I can Google how to do my own family law

The internet is a vast library of information. There are tutorials, how-to XYZ guides and online legal articles for searchers to consume. However, there is no guarantee the articles you take advice are written by experienced New Zealand Family Lawyers or even refer to the most up to date laws.

At Weston Ward & Lascelles, our Family Law specialists undertake years of studying Law which is continued throughout their career to keep up with changes to legislation. This is so important. What may seem like a minor amendment can have far reaching emotional and financial consequences. Hiring a Family Lawyer means you are paying for years of experience and expertise.

I know my case better than anyone else

You do, and you most likely have experienced traumatic and upsetting events or suffered family harm that has brought you to seek a legal solution but, and it’s a big but, you will look at everything to do with your case through a lens of strong emotions. Emotions have a habit of clouding judgement.

A Family Lawyer is more than a box ticker; they have a duty of care for you and work in your best interests – they have no ulterior motives, are not swayed by family politics and are not out to seek revenge. Your Family Lawyer’s mission is to get the best legal outcome for you - to protect you and your family for now and the future.

I’ve negotiated a good deal by myself

It’s always great news when people are open to negotiation. It makes settlements far easier to achieve – but what if one party is more vulnerable than the other? The temptation is to accept a deal to get a clean break, but often people who represent themselves in family matters unintentionally do themselves a disservice.

It’s best to get your family matter concluded correctly the first-time round. Too often there are oversights, omissions and errors that require a trip to Court further down the line – and more legal expenses to right the wrongs. Through years of experience, our Family Lawyers know what a good deal looks like and ensure their clients achieve a fair and just settlement.

Doing your own Law often results in justice not being served. There is nothing equitable about being short-changed. Whether it’s dividing relationship property, legally ending your marriage or civil union with a Dissolution Order, or agreeing child support, instructing the best Family Lawyer for your circumstances should be a priority.

Weston Ward & Lascelles’ Christchurch Family Lawyers provide supportive, cost-effective, and high-quality legal advice to our clients. We are passionate about helping people achieve the best possible outcome for their current and future circumstances. Contact us today to see how we can help you.

A Smooth Separation - Is it even Possible?

support@digitalpresence.co.nz (Simon Mullinger) — Mon, 01 Feb 2021 03:30:05 GMT

Splitting from any relationship can be tough, but when you have been together for a while and share children, property, assets and debts, tough just got tougher. No matter how amicable a split starts out as, once important decisions need to be made and a new reality experienced, even the most level-headed of exes can fall out.

Whether you are married, in a civil union or have been living together in a de facto relationship for more than three years, the presumption is that relationship property is split 50/50 (unless a contracting out agreement was signed). However, when is life as clear cut as that?

Who is going to be responsible for the larger share of day to day childcare? How are the children going to be supported financially?
Who is going to stay living in the family home? Can they afford to pay the mortgage, bills, and maintenance, and insurances etc?
What is going to happen to the furniture? Is the other partner going to be compensated if it is not split 50/50?
What assets do you have? Do you have a business? Superannuation?
Whose name are any debts in? Mortgage and credit cards are the most obvious shared debts but what about hire purchase agreements?

When relationships end there is a huge amount of emotional and financial uncertainty. The temptation, especially if you want to end a relationship as swiftly as possible, is to rely on verbal agreements about child custody and assets etc. However, situations and circumstances can change quickly, and problems arise when conversations are conveniently forgotten. Besides, verbal contracts can rarely be enforced should an ex not honour arrangements.

So, what can you do? One way to level the playing field is to have a separation agreement. A separation agreement gives both parties a degree of protection and stability during this difficult time.

What is a separation agreement?

A separation agreement is a written record of when both partners agree the date the relationship ended (key information for dissolution) and the responsibilities they are going to have moving forward. A separation agreement is an unsung hero for separating couples , and its power should not be underestimated.

How can a separation agreement help you?

Helps to keep relationship amicable and prevent future disagreements.
Saves time and money spent on lawyers
If successful, it can be used as the basis for your dissolution consent order

Dissolution court proceedings have a habit of turning even amicable separations acrimonious, so if you can iron out the differences before you get to court, you will find that the process is streamlined and so much less stressful (and cheaper too).

Being able to resolve key issues early on is especially important if you have children together. Reducing the opportunity for disputes to arise, separation agreements can help you move on with your life without the need for escalating conflict and legal costs – so yes, a smooth separation is possible, and we can help you negotiate the middle ground.

Weston Ward & Lascelles are leading family and divorce lawyers in Christchurch . We are passionate about helping our clients navigate their relationship breakdowns so they can reach the best emotional and financial position possible for their circumstances. You may feel alone right now, but we are with you every step of the way.

Changes to Trust Law NZ

support@digitalpresence.co.nz (Simon Mullinger) — Mon, 07 Sep 2020 04:03:45 GMT

The new Trusts Act 2019 brings changes to trust law. The Act comes into force on 30 January 2021. This applies to existing Family Trusts, Trading Trusts and Trusts created under Wills. There are duties that all trustees need to be aware of. The Act aims to make the administration of a trust more transparent, meaning for example there is a presumption that beneficiaries must be told that the trust exists and they can potentially benefit under it. The responsibility, compliance and liability of all trustees will increase. It is accordingly important to consider whether your trust is still needed and if so if it will comply with the new trust laws and that all your trustees are up to speed.

Trustee's Duties

There are mandatory and default duties that trustees are required to comply with.

Mandatory duties

The mandatory duties are primarily that a trustee acts honestly and in good faith; acts for the benefit of the beneficiaries and/or to further the purpose of the trust and exercises their powers for proper purpose.

None of these duties are new and all are well established under common law, but the duties are now codified in the Act. All trustees need to be aware of these mandatory duties, as they cannot be excluded or modified. Any purported exclusion of a mandatory duty will have no effect. It is even arguable, that if there is an attempt to exclude a mandatory duty that there was no intention to create a trust in the first place! It is important as such that no such provisions are left in your trust deed.

Default duties:

In addition to the mandatory duties, there is a list of default duties (ss 29-38) that trustees (unless specifically excluded) have to abide by. These duties are;

1. to exercise reasonable care and skill;

2. invest prudently;

3. not to directly or indirectly exercise their power for their own self-benefit/ profit;

4. actively and regularly consider exercises of the trustee’s power;

5. not fetter future trustee’s powers.

6. avoid conflicts of interest;

7. treat beneficiaries impartially;

8. act for no reward (the reimbursement of legitimate expenses is allowed); and

9. to act unanimously.

Default duties can be modified. Accordingly, it is good practice to get your trust deed reviewed to check whether the circumstances of your trust warrants amending the deed to exclude one or more of these default duties.

Indemnity clauses are void

The new Act also places a restriction on indemnity clauses. Where a trustee is dishonest, demonstrates wilful misconduct or is grossly negligent, a trustee cannot rely on exclusion from liability under the indemnity clause.

Trustee retire

If a trustee wishes to retire they must seek a discharge in writing from the person able to authorise the discharge. The Act also simplifies the process for removing a trustee who becomes mentally incapable of performing their trustee duties. Note, a trustee retiring from their role is also not automatically discharged them from liability.

Trustee’s administration

Trustees are also meant to know the terms of the trust and to act in accordance with the terms there of. This means that ALL trustees are required to hold a copy of the trust documentation. It is not sufficient, by way of example, for just one copy to be held in our deed’s system.

Better Transparency - Disclosure to Beneficiaries

Another core provision is that trustees ought to be accountable to beneficiaries. As such the new Trusts Act contains a PRESUMPTION that trustees will make available to every beneficiary basic trust information. Note the emphasis on the word “Presumption”.

Basic Trust Information means:

1. The fact that a person is a beneficiary of the trust; and

2. The name and contact details of each trustee; and

3. The occurrence of, and details of, each appointment, removal, and retirement of a trustee as it occurs; and

4. The right of the beneficiary to request a copy of the terms of the trust or trust information;

When deciding whether the above presumption to disclose basic trust information will apply or not, trustees must consider the following;

1. The likelihood or otherwise of the beneficiary receiving trust property in the future, including the nature, degree and extent of the beneficiary’s interest in the trust;

2. The expectation of the settlor at the time of the creation of the trust;

3. The age and circumstances of every beneficiary;

4. In the case of a family trust, the effect on relationships within the family, the trustees and the beneficiaries when information is disclosed.

5. Whether the information is subject to personal or commercial confidentiality;

6. In a trust that has a large number of beneficiaries or unascertainable beneficiaries, the practicality of giving information to all beneficiaries.

7. The practicality of imposing restrictions and safeguards on the use of the information.

8. If the beneficiary has requested further information. The trustee must consider the nature and context of the request; a reasonable fee can be charged to the Trustee for this request.

9. Any other factor that the trustee reasonably considers is relevant to determining whether the presumption applies.

A scenario where this could apply is where for instance the trust has been allocating income to an adult child beneficiary over a period of time and not to other beneficiaries. If this is disclosed to all the beneficiaries, it might lead to significant disharmony which the trustees may feel (all things considered) outweighs their duty to disclose.

Trust Law Changes 2021 | Other things to note:

The age of majority has changed from 20 to 18 years of age.

The maximum trust term has increased from 80 to 125 years, however, this extension does not automatically apply to trusts created before 30 January 2021. Again you may wish to vary your trust to provide for this.

The Act provides a degree of protection for trustees who invest with a diverse investment strategy and the ability of trustees to authorise persons to act on their behalf.

The Act specifically stipulates a resolution procedure. However, the Act also authorises trustees to use alternative disputes resolutions, even if those procedures are not specifically authorised in the Act.

I’m a Trustee – what should I do before the end of October?

We recommend that you book a consultation to discuss your Trust with one of our Family Trust Lawyers , please conta ct or fill in our online form below.

Expert Prenuptial Agreements & Contracting Out Agreements

Tue, 11 Aug 2020 22:21:40 GMT

Prenuptial Agreements – legally known as a Contracting Out Agreement

What is a prenuptial agreement?

Prenuptial Agreements are formally referred to as a contracting out agreement. A prenuptial agreement is used when a married couple, civil union or de facto relationship of more than three years separate, this will determine how the property will be distributed. It is always advised that if prior to the relationship one party had significantly higher assets than the other party that a prenuptial agreement is entered into. There is the hope that you will never have to use it, however, if this circumstance does arise it brings peace of mind. It is also important that current legislation makes the place where the parties live relationship property. Therefore, a prenuptial agreement is a way to protect the property that you bring to a relationship.

What happens if there is no prenuptial agreement?

If there is no prenuptial agreement, the relationship property will be distributed in accordance with the Property Relations Act 1976. The relationship has to be over three years and the couple has to have been married, in a civil union or in a de facto relationship. However, there are some circumstances where the three-year rule can be reduced. When a couple separate, all the property owned jointly together will be classed as relationship property. This includes;

- The family home (whenever acquired);

- Family chattels;

- Property purchased in contemplation of the relationship and/or the benefit of the family;

- Income earned or assets acquired during the relationship.

There can be separate property;

- Such as inheritance or a gift;

- A business;

- Or property owned prior to the relationship commencing.

The issue with separate property if it is “intermingled” and used for the common use and benefit of the relationship or the family, it may be deemed as relationship property. Another example is where one person owns a business and over the relationship the value of the business has increased.

When should I get a prenuptial agreement?

At Weston Ward and Lascelles we advise that an agreement should be entered into when;

- Where one party has significantly higher assets than the other, when entering the relationship;

- Where one or both parties own a home at the start of the relationship;

- Where the relationship is a second (or more) relationship for one or either party, especially when there are children from previous relationships.

For a valid agreement to be executed each party needs to receive independent legal advice.

Can a prenuptial agreement be overturned?

These agreements can only be overturned if the Court is satisfied that it would cause serious injustice to the other party involved or that they believe that either client was not advised clearly of the implications of the agreement. However, this is uncommon.

What should I do from here?

If you have any questions please contact our supportive family lawyers in our Christchurch office .

Finance Clause in a Sale and Purchase Agreement

support@digitalpresence.co.nz (Simon Mullinger) — Wed, 05 Aug 2020 00:38:19 GMT

Pre-approved finance, ain't all that.

There is a risk to signing an unconditional sale and purchase agreement – even though you have your finance pre-approved. Often bank instructions are such that they require us as lawyers to advise them of any title defects. So even if our client instructs us not to let the bank know about a title defect, if we fail to advise the bank of the existence of same, then we are in breach of the undertakings we give the bank in our Solicitors Certificate.

Also, bank instructions to us, require us to advise them of any building consent or resource consent issues as soon as we become aware of them. A LIM report will record all the building and resource consents registered on the property.

Again, if we fail to advise the bank of any such building consent or resource consent issues that we know about (irrespective of whether or not the client’s contract to buy is unconditional or conditional) then we will be in breach of our undertakings contained in our Solicitors Certificate. This means that the bank cannot process funds because they do not have a Solicitors Certificate. Hence a client may not be able to fund the settlement.

All of which means that pre-approved finance, ain't all that. Even if a client doesn’t need any finance to buy a property, it is still unwise for them to sign up an unconditional offer to buy a property – well, unless they have first carried out due diligence on the property concerned.

Before you ever put pen to a Sale and Purchase Agreement, we cannot emphasise enough how important it is to get the contract reviewed. We are happy to review a Sale and Purchase Agreement for you before it is signed. If you have a contract that needs to be reviewed, please email a copy through to us.

Weston Ward & Lascelles are leading property and conveyancing lawyers based in Christchurch. Our property and conveyancing legal team is highly experience with buying and selling residential and commercial property and we are happy to guide you through the entire process. Contact our team today.

Property Lawyers for Section Purchases

support@digitalpresence.co.nz (Simon Mullinger) — Fri, 17 Jul 2020 03:03:36 GMT

It is the dream of many New Zealanders to buy a section and build their ideal home, but what starts as an idealistic step towards ‘living the dream’ can turn into a finance guzzling nightmare if you go into it with your eyes wide shut. Your home will likely be the most valuable asset you own, so it makes sense to take every step you can to protect it and your future financial security.

A great location is crucial if you want your build to provide you with a healthy capital gain. Never underestimate the value of having a fantastic view, a north facing garden or being in an established popular neighbourhood – people will always pay a premium for these features if you do ever decide to sell. However, no matter how great a section looks, it is critical you don’t take the vendor’s word as gospel when it comes to building consent, power and sewage connection or anything else you need. You have to do your homework!

Why you need a property lawyer to help with due diligence

Due diligence is when you investigate the section before you purchase it. Many a landowner has been caught out by misunderstanding reports and failing to recognise the significance of some of the included information. Professional interpretation by a specialist property lawyer is paramount for the:

Certificate of Title

This is to check who has legal ownership of the section and if there are rights and restrictions associated with the land including (but not restricted to) mortgages, easements, and covenants.

The importance of this document cannot be underplayed. It tells you whether the section has the right zoning and covenants for the type of build you want. Some restrictions found in Certificate of Titles go far beyond the expected building height and size stipulations: where you can build a shed, the type of fencing you must use, or where you can position washing line etc. Similarly, people often assume (especially when purchasing a lot in a subdivision) they’ll be able to get services connected, but if it’s not documented in an easement it’s not guaranteed.

Land Information Memorandum report (LIM)

This report is Council issued and contains legal information related to the section such as earthquake damage (liquefaction, lateral spread, and changes in level), erosion or flood risk, potential contamination, drainage systems, and consents or notices from power or gas companies etc. Crucially it also tells you about future new developments - is there going to be a motorway built or roads widened in the local area? Or conversely, if there are protected historic features such as trees on the section which will put a stop to your development.

You really cannot afford to skip or botch these due diligence investigations; they are there for your protection!

Land Covenants

Many subdivisions are subject to Land Covenants which are a set of guidelines that section owners need to abide by when building and utilising their section. Each sub-divisions covenants can vary, but most will have building guidelines, fencing guidelines and developer approval. You must be aware what is in the covenants, an example is a subdivision might prohibit caravans being parked on the site. Now if you live on site in your caravan during the build of your home to save money, you may find that you could get a fine from the developer of the subdivision. Some covenants might prohibit the use of gas cylinders (except BBQ), so you might not be able to have a gas hob in your kitchen. It is important to know what is in the Land Covenants before your contract goes unconditional.

Why you need a lawyer to help with a section purchase

The complexity and interlinking nature of the information found through due diligence can often hide issues that give the purchaser power. Identified areas of concern are bargaining tools for negotiating on price and/or introducing a sunset clause. Your property lawyer will advise you how to negotiate the best price for the section and review the sale and purchase agreement. Remember, your property lawyer works for you, and will ensure your position is protected.

Yes, legal fees are an additional cost to add to your build, but compare them to the cost of having to remedy an issue (either to fix or insure) and the impact it may have on any resale value. You really cannot afford to skip or botch these investigations; they are there for your protection.

Weston Ward & Lascelles are a highly skilled team of specialist property lawyers in Christchurch with great success of negotiating contracts of sale for section purchases in Canterbury and across New Zealand. If you have any questions relating to section purchases, get in touch today with our property team. Click here to arrange a call.

3 Tips to Smooth the House Buying Process

Tue, 16 Jun 2020 03:41:09 GMT

3 Tips to Smooth the House Buying Process

Estimates from Statistics New Zealand show the numbers of Kiwi homeowners has been steadily falling over the past few years. 1 in 3 Kiwis currently rent, but the 30th April 2020 announcement from The Reserve Bank may just be the catalyst to buck this trend and get the housing market moving.

The loan to value ratio (LVR) funding restrictions that have been in place since 2013 have been lifted. The banks can now lend people more money to buy properties. You still need to be able to demonstrate you are credit-worthy, but you have more options for finance: you can go to any bank to get a pre-approval. Not only is this likely to kick-start the economy, but potentially bring a wealth of new properties to the market too.

Whether you are a first-time buyer or a seasoned pro, it’s crucial to understand buying a property is a complex legal process. Investing in professional legal advice protects your financial position (your property is likely to be the most valuable asset you have) and helps to reduce the stress of purchasing a property.

Purchasing a house can feel like being on emotional rollercoaster, so here are three tips to smooth the house buying process:

1. Search for properties after you have an agreed pre-approval

Before you get carried away searching for a property, you need to have clarity about your financial situation. Champagne tastes and beer money leads to stress and disappointment. Research the best mortgage options available to you. Only when you have a pre-approval in writing should you start to look for a property.

2. Instruct a property / conveyancing lawyer early on

The process for buying a house can move quickly – in as little as three or four weeks – you should be in contact with a professional conveyancing lawyer before you even think about entering into an agreement. There’s no such thing as being too early in the process to seek specialist conveyancing advice. In fact, it is even better as we are able to complete identification requirements to help advance the process.

A property lawyer will explain the jargon used, the types of property ownership and undertake the required checks on the property you have your eye on. Land Information Memorandums (LIM reports) and titles provide valuable information that often requires more investigation and interpretation by your conveyancing lawyer. Christchurch and Canterbury have a high proportion of properties affected by the earthquakes of 2010 and 2011, so independent legal advice is essential when you are buying a house.

Note: If you are buying an on-sold property, your conveyancing lawyer will oversee the transferring of rights and benefits of an EQC claim and the provisions of a Deed of Assignment. This is so important; it cannot be emphasised too strongly how investing in the best legal advice can help you to avoid litigation and save you money down the line.

3. Understand the offer you are making

Once all the checks have been made and you are happy with the reality of the property, your conveyancing lawyer will draft an offer. There are two types:

A unconditional offer

Quite simply, you agree to the terms in the sale contract.

Conditional offer

This is when the offer is on the provision that specific conditions are met – a building inspection is undertaken, or additional works are completed, for example. When the conditions are resolved, the offer is unconditional and it’s full steam ahead.

When you are excited and passionate about a property it can be easy to jump the gun and make an offer; don’t do this. When you make an unconditional you are locked into the purchase. Listen to the advice of your conveyancing lawyer!

Weston Ward & Lascelles have had the privilege of helping people buy their homes for over a century. Our team of Christchurch conveyancing and property lawyers are experts in buying and selling properties and are passionate about getting you the best deal for your property. Get in touch today to see how we can help you.

Working Safely During Alert Level 2

support@digitalpresence.co.nz (Simon Mullinger) — Tue, 12 May 2020 23:26:36 GMT

Working safely during Alert Level 2

The Government have announced that we will enter Alert Level 2 on the 11:59pm on Wednesday 13th May 2020. Businesses are allowed to operate under Alert Level 2 on the basis that they comply with the Alert Level 2 requirements of physical distancing and meeting appropriate health and safety requirements for their workplace.

Weston Ward and Lascelles

Our office will open to the public again on Monday 18th May 2020. Physical distancing of 1 meter is to be observed. When you come into the office your details will be noted in our tracing register. Our preferred mode of meeting is still using audio-visual communication, where possible. If you are required to come into the office to meet with one of our team, your meeting will be hosted in the best size room to give the space required and small numbers are encouraged. Enhanced hygiene practices will be in place, all surfaces and equipment will be wiped down regularly. If you have any concerns or have anything you would like to discuss with one of our team of Christchurch lawyers please get in contact .

Rent Proportion for Commercial Leases

Mon, 20 Apr 2020 03:44:32 GMT

What is a fair proportion of rent for a commercial lease?

The issue of paying rent for a commercial lease has arisen again – the last time being when the 2010/2011 Canterbury earthquakes struck. For both landlords and tenants this is a stressful time.

The standard ADLS Commercial Lease 6th edition 2012 form under clause 27.5(c) states:

"when a building is inaccessible then a fair proportion of the rent and outgoings shall cease to be payable for the period commencing on the date when the Tenant became unable to gain access to the premises to fully conduct the Tenant’s business from the premises until the inability ceases.”

The issue of determining a “fair proportion” relies on many factors which are important to be discussed to reach an optimal outcome. Feel free to book a FREE 15 minute consultation with David Houston to discuss your commercial lease, which you can book here

How to Recover Debt

support@digitalpresence.co.nz (Simon Mullinger) — Thu, 16 Apr 2020 18:24:54 GMT

Debt is a complex issue within our society many people and businesses struggle with. Recovering outstanding debts from an individual or business is painful, and even more so when you have previously had a good relationship with the debtor. You don’t want to be perceived as an antagonist, but when push comes to shove, you need the money for your own cash flow.

The reality of being owed money is typically one of frustration, but it’s important to keep your cool when chasing the debt.

There are stringent laws that protect debtors, for example:

You cannot say or imply that you have filed for court proceedings when you have not;
You cannot say or imply that you are going to court when you have no intention to;
You cannot make unreasonably repetitive attempts to contact the debtor;
You cannot contact the debtor at unreasonable times of the day or night;
Most importantly you cannot threaten police action if they do not pay the debt – even if you think they might be guilty of a crime. That is blackmail and a really bad idea.

So, how can you get your money when someone has defaulted on payment?

If you have gone through your standard debt recovery process and it has not yielded results, it’s time for action.

Step 1.

Get your ducks in a row. Make sure the paperwork is in order to prove you are owed the money in the first place.

Step 2.

Give notice of the debt. You may have supplied the debtor with this information several times but make it official. Write a letter and call it ‘Notice of Debt’ so there can be no confusion. The notice of debt must include the amount owed, what it is owed for and provide a reasonable length of time for payment deadline.

Step 3.

If again your efforts are fruitless and you have received no response from the debtor, it is time to up the ante.

You have three options:

a) Write it off

Nobody wants this, but it could be the least stressful/ cheapest option. Unfortunately, if your business’s T&Cs and contract are not up to scratch and fail to protect you, this scenario will likely happen again. This is where Weston Ward & Lascelles’ specialist business lawyers can help you.

b) Hire a debt recovery agency

There’s a fine line between chasing a debt and chasing clients away. Many people are uncomfortable with the reported unorthodox methods used to recover debt through agencies. In many cases, the original amount owed becomes dwarfed by the amount charged to the debtor for the debt to be serviced. If payment remains elusive, the debt recovery agency will instruct a debt recovery lawyer to start court proceedings.

c) Hire a specialist debt recovery lawyer

Sometimes receiving a letter from a lawyer is the only prompt needed for funds to be transferred from the debtor. With specialist knowledge of debt recovery law and regulations, instructing a lawyer is a reputation maintaining and relationship preserving way to recover monies owed.

Step 4.

Hire a specialist debt recovery lawyer; yes, there is no escaping the fact you will, at some stage, need to hire a lawyer. It’s up to you when you seek specialist advice, but the earlier the better. Hiring a specialist debt recovery lawyer can help you avoid court.

No matter which court your case is heard in (a District Tribunal, the District Court, the High Court), it takes time and money to pursue a claim. Sometimes it’s the only course of action that a creditor has left, but it will mean you can finally shut the book.

If you are struggling to get debts paid, Weston Ward & Lascelles can help you – no matter at which stage of the debt recovery journey you are on.

Whether you want to tighten the grip of your contract’s terms and conditions or need to explore the most effective and cost-efficient route for debt recovery, our specialist debt recovery lawyers can help you. Contact us today, to learn more.

How Updating Your Will Protects Your Legacy

support@digitalpresence.co.nz (Simon Mullinger) — Mon, 30 Mar 2020 00:29:49 GMT

It is estimated that four in ten Kiwis have not made a Will. If you have already made a Will you are already ahead of the curve. Congratulations. Have a pat on the back. However, across the land hidden in kitchen drawers and forgotten in filing cabinets, there rests a vast number of unenforceable and out-of-date Wills which, when needed, are found to disappoint beneficiaries and fuel unnecessary legal costs. Most people get the formalities of writing a Will right, and a professionally drafted Will avoids the risk of your wishes not being followed, but a major cause of heartache for grieving family and friends is when the Will has not been updated.

When was the last time you reviewed your Will? Chances are high that if you are reading this article, you may not have done it for some time, but why do you need to review your Will? During your lifetime you will undoubtedly experience changes to your relationships, financial situation, fluctuations in property values and a host of other factors that can mean that your carefully drafted Will is no longer a true representation of your circumstances and wishes.

When should you update your Will?

A good rule of thumb is that you should review your Will every three to five years. Reviewing your Will is important. You may have accumulated or even liquidated assets, or there may have been changes to the law that could deem your Will invalid between the time that you wrote it and the present day.

By periodically reviewing your Will you can identify any issues that have cropped up in the meantime so that you can organise and plan your estate accordingly.

Even more important than a scheduled review is an update after a life changing event. Big life events should trigger a review of your Will.

These can include:

Buying a house
Getting married or divorced
The adoption or birth of a child or grandchild
Children or grandchildren reaching 18 years old
A substantial change to the value of your assets
The death of a beneficiary
Receiving an inheritance
Starting a business

What should you review?

The most obvious detail to check is that you are still happy with your named beneficiaries and what is due to be distributed to them on your death. However, you should also reflect on your choice of Executors, Trustees or Guardians – their suitability may have changed too. You need to choose people who are most likely to survive you, so if they have been plagued by ill health or have died you need to review your choice.

Keep up to date with tax law. Not only is your Will instruction on how to divide your estate, it is also a tool to distribute your assets in the most tax efficient way. This is especially relevant for estates of a high net worth and for those who have ‘awkward’ family assets such as family businesses or working farms which may be eligible for tax savings.

Nobody likes thinking about their own mortality but having an up to date and relevant Will ensures that you are remembered for the right reasons; inheritance disputes remain one of the most divisive family issues.

So, if it’s time to review your Will, get in touch . Weston Ward & Lascelles can help you at every step of the process from minor amendments through to progressive estate planning; we can help ensure that you leave the legacy you want to.

Get a Will Drafted today

An effective will needs to be drafted by an experienced lawyer, and will save you unnecessary expense when you pass. Please note this article does not constitute legal advice.

Turning Your Life Support Off

Mon, 30 Mar 2020 00:26:51 GMT

Do you want your life support turned off?

A Living Will is a document of what your wishes are if you are ever in a critical life-ending condition. This has no legal effect and is not binding on your family or the medical condition. However, if you ever where in the situation where you were needed to be resusucitated or subject to ongoing treatment to a terminal disease. A Living Will states what your wishes are and what you wanted when you had the capacity to make that decision.

What is a Living Will?

A Living Will is simply a written record of your wishes. Although it has no legal effect and is not binding on your family or the medical profession, it states what you wish to happen should you suffer an accident or illness and you are on life support or in a serious condition.

The Living Will can address such issues as resuscitation, treatment, prolonging of life; pain and distress relief and life support.

What are the advantages of a Living Will?

A Living Will can address some of those issues that not all people want to talk about. It can give medical staff, your family, and loved ones a clear indication of what you would like to have happen to you should you be unlikely to recover or, if you do recover, if your quality of life will be adversely affected.

You must be mentally capable and be in good health when you make a Living Will. This means that it is something that everyone should think about today as a serious accident or illness can occur at any time.

Do you need a Living Will?

Arrange a time to get a Living Will. Please note this article does not constitute legal advice and may be outdated.

Why You Should Update Your Will

Thu, 19 Mar 2020 05:58:15 GMT

Why should you have a Will?

If you don't have a Will ask yourself "who will organise your life when you die?" If you're intial thought are your partner, or your child or your friend, consider the idea that at the time of your death they are likely to be in either shock or grieving or both. Death is a difficult time, and it is important that your wishes and your legacy is upheld. An up to date Will documents your wishes and upholds your legacy. Your estate, (which is all your property) will be distributed in accordance to your Will by an executor. This is the person that you nominate, and is usually your lawyer. If you don't have a Will the process is usually more prolonged and costly, the expenses are taken from your money.

I have a Will - when should I review it?

At least every five years.

When your general circumstances change i.e when you buy or sell a home.
After the birth of your children.
After the death of a family member.
After any significant alteration in the situation of a family member.
On marriage.
On separation or divorce.

How does the review process work?

All you need to do is simply contact the office, you can either call us or email to arrange a time to meet and we can review your Will at the office. Or we can email a copy of your Will to you to review, but however it is important that any alterations to them (codicils) are completed properly for the document to be effective.

Once we have updated the Will we will need you to sign the updated Will. We will hold the original copy of your Will and send you a photocopy of the signed Will.

Want to check that your Will is up to date?

A Will is one of the most important documents you will hold - it will uphold your wishes and legacy. It is important that your Will is up to date as this will make the process less complicated when your estate is being distributed. Please note this article does not constitute legal advice and may be outdated.

Weston Ward & Lascelles can assist you with you will, pleae contact our Christchurch Lawyers on 03 379 1740 or if you prefer you can email us

How To Separate From Your Partner

Thu, 19 Mar 2020 05:43:30 GMT

Disclaimer

The author has been practicing law for over 30 years, this article is written with a cynical but blunt twist. If you feel that you may take offence when reading then please stop reading now. However, if you are of a more robust character please continue and learn from one's first hand experience.

What you need to know before separating

OK we can’t make these painless (and advocating alcohol would be plain irresponsible), however we can give some sensible advice;

Lawyers have a duty to advocate reconciliation and can point you in the direction of Counsellor’s (free up to a point) to help with this.
The process of separating is almost invariably going to cost you, but the amount it is up to you.
The law does not care who is at fault and nor should you. Lawyers make far more money out of those determined to prove guilt, to allocate responsibility or to extract vengeance then ever they do from those prepared to put it down to a bad experience and to get on with life. Argue over principles if you want, just remember these don’t come for free.
The Law Commission has recently released the a new issue paper on the division of relationship property, this is not the law.

If you and your partner have agreed that you want to end your relationship. Try and agree between yourselves the "big picture" items:

Who has the children and when.
Who gets the dogs.
Who gets the assets (including life insurance policies and superannuantion schemes).
Who is reponsible for paying short and long term maintenance. (I.e mortgage, rates, insurances, debt, childcare etc.)
Who stays in the family home.
When the arrangement "kicks in".

Other things to consider

Consider if your Will is still appropriate and whether or not you should immediately be making changes to that – most times you should.
Consider if your Enduring Power of Attorney is still appropriate.
Make sure the bank agrees that the old joint mortgage cannot be used as security for any new borrowing by either partner.
Remember here that unless and until such time as new arrangements are made, then you are both responsible for meeting all obligations secured under your mortgage, which will include any facilities either of you have or may open in the future, whether with or without the others consent or even knowledge!
Revisit any guarantees given notice of the cancellation thereof and/or seek indemnities from your ex under your separation agreement.
If you are involved in partnerships and/or companies with your ex
relationship partner, check that any loans between entities are dealt with and recorded as repaid, shares are fully paid up and transferred, and directorships (which carry their own risk) are resigned from.
Revisit ALL insurances to check they are put into the right names and they are still relevant to your circumstances.

Should I get legal advice?

Always, always, always, always, always, and yes always, find out what your legal rights are. Even you are the only one in 50 billion squidillion, famillion (I have no idea at all if these are actual words!) of couples separating that are going to be perfectly civilised about it and you are parting as BFF (my eight year old daughter once told me this means Best Friends Forever), or it was you that shagged the neighbour and you feel like pooh (and I don’t mean as in Winnie), you owe it to yourself to find out what your rights are. Whether or not you actually enforce those is over to you, but at least you will have made an informed decision. This is especially true if you are being victimised, dominated or made the subject of an abusive relationship (and here I am speaking as much to guys as to females, as husband bashing is very much alive and well in New Zealand – albeit one that because of male pride, does not get as much attention as it deserves). You owe it to yourself and any children you have to make an informed decision about what your current and future entitlements are.

Try and get clarity on all relevant issues and give your solicitors clear instructions so that they can prepare a property relationship agreement recording your separation and the agreement reached. Both of you will need separate advice on the agreement, but at least if you can agree the terms of the “big picture” in advance, then the additional cost incurred in having that thrashed out by your lawyers will be avoided. Do “NOT” try and do this yourself. Agreements entered into without each party having separate legal advice and solicitors certificates to this effect, are completely worthless and open to being revisited by either party at any time. This is a false economy and one that invites major problems (aka expense) later on.

Please note this article does not constitute legal advice and may be outdated. If you are looking for legal advice, please contact our Family Lawyers in Christchurch today!

Unlock Success: Your Essential Guide to Shareholder Agreements

Thu, 19 Mar 2020 05:39:02 GMT

Why do you need a Shareholder Agreement?

A Shareholder Agreement is an agreement between shareholders (separate from a Constitution) or partners (separate from a partnership deed) setting out;

What happens concerning your interest in the business:

If you die, suffer total permanent disability or Trauma, (i.e. how can you turn your interest in the business into money for your family).
If your co-shareholder or business partner dies or suffers incapacity, (i.e. will you end up working with somebody who can no longer “pull his or her weight” or with their spouse (as the inheritor under their Will) trying to get involved, or can you force the deceased/incapacitated party to sell out and if so, for how much).
If you want to exit the company, (i.e. when you wish to retire, is there an orderly process for this to happen at a fair price or could “obstacles” be put in your way).

What happens when a partner is in a relationship property dispute?

What shareholders expectations are concerning each entering into agreements with their spouses/relationship partners sorting out ahead of time what happens to shareholdings in the business if they split up (i.e. specifically we can require shareholders to enter into a property relationship agreement with their spouse whereby they agree that in the eventuality of a separation that the business falls into the share of the person who is active in the business and the spouse is only entitled to claim other assets).

Do you have the right type of insurance?

Who holds what insurance over which key personnel and when and to whom in these eventualities, is it paid.

Do you have a Buy Sell Agreement?

Sooner or later ONE OR MORE OF THESE THINGS WILL HAPPEN to you and although often an orderly arrangement can be arrived at, in other situations what is an already stressful time is turned into a positive nightmare with such events triggering in-fighting, “book cooking” and the total breakdown of what was once a good working relationship, as various party’s suddenly find themselves under pressure to buy or sell what has often been up to that point, their life’s work.

Incidentally you should review at the same time;

Your estate planning and whether or not as part of this;
Can you legally minimise the amount of income tax you are liable to pay, (i.e. by possibly; Restructuring, so as to spread income between yourself, the business, trusts and family so as to maximise marginal income tax brackets. Swapping non tax deductible borrowing for borrowing that is tax deductible).
If a Family Trust is desirable.
Your Wills, Living Wills and Enduring Powers of Attorney are up to date.
Terms and Conditions of Trade.
Whether or not you have written Employment Agreements.
Whether or not you should have a Property Relationship Agreement (or if you have an old one, a review of that).

Where to from here?

We would suggest that you;

Call us to arrange a short meeting for a flat fee to discuss.
Contact your insurance broker to discuss availability of relevant insurance. We can refer you to brokers if you would like.
If you like what you hear, we can then proceed further, in the unlikely event you don’t, then at least you will have addressed the matter and made an informed decision.

An effective Shareholder Agreement needs to be drafted by an experienced family lawyer. Please note this article does not constitute legal advice and may be outdated. Contact our team in Christchurch today to find out more

Disturbing Facts About Wills

Thu, 19 Mar 2020 04:30:20 GMT

Your marriage revokes your Will but separation does not. If you separate (more of which I comment on hereafter) one of the first things you should do is to see a lawyer to change your Will. In the meantime, don’t be the first down the stairs!

Have you heard the saying (please excuse the vulgarity) “your arse is mine” well after you’re dead, from at least a trustee’s perspective that is perfectly true. In particular your trustees and executors (and not you by your Will nor your family) decide what happens to your body. The lesson here is to make sure that your trustees and executors know, and more importantly can be trusted, to follow your wishes concerning what is to happen to your remains. The usual options are cremation or burial, although I did have one old chap tell me to just shove a leg of mutton up his [bottom] and let the dogs drag [him] off into the bushes.

The Property Relationships Act overrides your Will, so if you don’t leave at least one half of your relationship property to your relationship partner(s) (the “s” here is intentional as at law there is no maximum number of relationship partners that the law can recognise you as having at any one time, all of whom qualify to be able to claim against your estate under this Act), so if instead you want to, for instance, leave more than half of your relationship assets to your children by an earlier marriage, then be aware your surviving relationship partner will have an automatic right of challenge. Note if you are mad enough to have more than one relationship partner on the go at a time, then the Court will prioritise these in order of importance to you and then give half of your relationship property to number one, half of a half to number two, half of a quarter to number three, half of an eighth to number four and so on!

Even if surviving relationship partners don’t want to challenge your Will, then sometimes Government departments will try and force them to challenge this in an effort to ensure that they get something more than they would otherwise have got under your Will and are thus put into a position to pay their own rest home subsidies.

Sometimes elderly parents become the pawns of their children (possibly of an earlier relationship) and understandings are forgotten as money hungry (step)children are suddenly closer than dermatitis to their surviving parent and become “actively engaged” in the management thereof.

What happens when you die without a Will?

It will take a lot longer and be more expensive to sort out your estate than it is if you take the time to sort it out now. Further your family could be left without immediate access to money and other assets that are tied up in the administration process. Further even once those are finally made available, your estate will face a larger bill than if you had simply taken the time to sort your affairs whilst living.

The law sets down who gets what based on legal relationship as opposed to your wishes. In fact how close you were to the relevant people, when you last saw them or who else may be deserving is irrelevant. Without a Will who gets what is decided for you based on some antiquated law as opposed to practicalities, true relationship and/or your probable wishes.

Remember

Good intentions were exactly that – intentions.
Understandings can be ignored or overridden, especially when you can’t predict who will in fact in the future be calling the shots.
It is a bit late to start planning and organising your affairs when you are standing in front of the Pearly Gates.
Your family will thank you for a wee bit of planning and expense now, rather than leaving them with an unpleasant, stressful mess later on.

Get a Will drafted today

An effective will needs to be drafted by an experienced lawyer, and will save you unnecessary expense when you pass. Please note this article does not constitute legal advice and may be outdated.

Separating from Your Partner? 5 Steps to Take | WWL

support@digitalpresence.co.nz (Simon Mullinger) — Tue, 17 Mar 2020 21:35:43 GMT

What you need to know before separating

When your relationship has broken down and you decide to separate from your spouse or partner, you face uncertain and challenging times - you are in new and uncharted waters. It’s likely that you feel overwhelmed by the reality that you now need to make decisions for your family independently. You know what your end goal is, but you may not see clearly how to get there or what you need to do to move forward.

The choices you make need to protect your emotional and financial well-being for the short and long term – with the added pressure of the fact you only have one shot at doing it right, so make sure you do!

If you are scratching your head and wondering what to do next, here are 5 practical steps to you should take:

1. Seek legal advice

Obtaining legal advice from a dissolution lawyer early on in the separation process is an important step for you to take. It means that you can make informed decisions about how best to progress without inadvertently jeopardising any future claim. Seeking legal advice gives you direction and a clear understanding of the issues that may affect you.

2. Find and copy important documents

It’s a good idea to collate as many important documents as possible before you officially separate- your marriage certificate, land title documents, investment and trust documents, bank statements (personal and business), asset valuations, superannuation information and loan agreements – all assets that can be considered relationship property . Getting your ducks in a row before you leave helps your dissolution solicitor represent you efficiently (and more cost effectively!)

3. Understand your financial obligations

Money is typically the one area that separating couples disagree about. It’s important that you understand exactly what financial obligations you have and how they are going to be met in the short term.

Your financial obligations can include the mortgage, loans, credit cards, vehicle lease, household bills etc. If you can, discuss this with your partner and make interim arrangements – remember, this isn’t forever, but just to carry you over. If you are unable to reach an agreement, your family law specialist will assist you.

4. Update your passwords

The digital age that we live in means that a lot of personal information is stored online. Update your passwords for any personal accounts that you have – this includes e-mail, social media platforms and internet banking accounts.

It’s important that you keep your personal information secure by choosing a password that is not related to any previously used; avoid children’s names, pet names or dates of birth, for example.

5. Agree with your partner how you are going to tell your children, friends and family

When a couple separates there are more than two people who will be impacted. If you can, discuss and agree with your partner about how, what and when you are going to inform your loved ones. This helps to lessen the impact, avoids putting people in awkward situations and can also help to make the separation more amicable. This is especially important if you have children.

Weston Ward & Lascelles are a Riccarton law firm highly experienced in helping people just like you who are separating from their partner. Our specialist family law team provide tailored advice for your unique situation so that you can get a robust and fair outcome. Contact our Christchurch family lawyers today to arrange an appointment.

Disclaimer

This does not constitute legal advice.