July, 2024 - Parry Field Lawyers

We are often asked when a charity will be registered after applying to Charity Services. This is because the time between applying and getting positive news can be 12 weeks, or more. The simple answer is Charities Services can backdate to when you first applied, but there are two criteria under section 20 of the Charities Act 2005 (the Act) that must be considered. These might affect if they can backdate and are:

When did Charities Services receive a “complete” application?
Was the entity “qualified for registration” as a charitable entity at all times during the period between the effective registration date and the date the entity became registered as a charitable entity?

A completed application requires a completed application form and a copy of the entity’s legal rules. An entity is “qualified for registration” where the application meets all key registration requirements under the Act. This could have an impact on the date. For example, if an entity was required to amend its rules to meet these requirements, then Charities Services can only backdate the registration date to the date of these amendments were legally effective. However, the High Court has allowed the backdating of an application where such amendments were “for the avoidance of doubt”.

Charities Services have the power to backdate an application to the date they received a complete application for an entity that is qualified for registration at all times from the period of effective registration and the date of actual registration. A backdated registration is referred to as the effective registration time, being the date registration was effective rather than when it occurred.

The High Court has interpreted the Charities Services ability to backdate as a means of addressing the otherwise adverse consequences for charities of administrative delays. However, this discretionary ability was not found to extend to charities that have been deregistered and have applied for another application to be registered. The Court, alternatively, does have the power to do so. This means that if a charity wishes to have a backdated registration following deregistration it would need to appeal to the courts for an order to do so.

In summary, while most applications can be backdated if you are asked to amend your documents it may not be possible unless the changes are not very material. We have helped many charities get registered and are happy to provide advice for your specific situation or answer any questions you may have.

If you have any further queries please do not hesitate to contact one of our experts at Parry Field Lawyers- stevenmoe@parryfield.com, sophietremewan@parryfield.com or annemariemora@parryfield.com

This article is general in nature and is not a substitute for legal advice. You should talk to a lawyer about your specific situation. Reproduction is permitted with prior approval and credit being given back to the source.

If you are able to demonstrate that a deceased person failed to fulfil a promise to leave you something after they die, how much will the Court give you?

All claims under the Law Reform (Testamentary Promises) Act (“TPA claim”) are fact-specific. If a claimant succeeds in convincing a court that they have a valid claim (see this article for details on what that requires), the Court will make an award out of the assets of the Estate.

When assessing what size of an award is appropriate, the Court takes into account:

The value of the services or work;
The value of what was promised;
The amount of the estate; and
The nature and amounts of the claims of other persons in respect of the estate.

It can be difficult to assess the commercial or market value of the services performed, especially where they are intangible.

The Court will principally focus on the deceased’s perception of their value. However, there cannot be a major disproportion between the award and the value of the services.

The Court will also take into account any reciprocal benefits that the claimant received from the deceased – whether those are tangible things like payment of groceries, or intangible such as a return of companionship and support.

All TPA cases are heavily influenced by their unique context. Please contact us for specific advice. We have experience in both bringing and defending TPA claims.

For more details about what it takes to succeed in a TPA claim, see this article.

This article is general in nature and is not a substitute for legal advice. You should talk to a lawyer about your specific situation. Reproduction is permitted with prior approval and credit being given back to the source.

What happens if someone promises to leave you something after they die, but then fails to actually do so? If you performed services for the deceased person in reliance on that promise then you may have a claim under the Law Reform (Testamentary Promises) Act 1949 (“TPA claim”).

To succeed in a TPA claim, you would need to prove that:

You rendered services to, or performed work for, the deceased person during their lifetime;
The deceased person made a promise to you , either express or implied, to reward the claimant for the services provided;
There is a nexus between your services rendered or work performed and the promise; and
The deceased person failed to make the promised testamentary provision or to otherwise remunerate you .

What is a promise?

Promises are defined broadly in the Act. It includes statements or representations of fact or intention. The promise may be made either before or after the services were rendered or the work performed.

It is not necessary that the deceased person ever specified an amount or particular piece of property as the reward. In one case, the Court found that statements such as “I will see you right” and “I will look after you” were sufficient.

In determining whether or not a promise has been made, the Courts may place more emphasis on what you could reasonably have understood by the deceased’s statement than on what the deceased actually intended. However, promises made “in the heat of the moment” and fuelled by emotion may not amount to a promise in terms of the TPA.

Additional evidence of the promise, such as written statements or confirmation by others, will strengthen your claim that the promise was made. However, claims without supporting evidence can still succeed. The Courts also consider the circumstances in which the promise was said to have been made.

Did you perform services for the deceased?

Services can be a variety of things. Cases have recognised things like:

farm work and supervision;
housekeeping and domestic services;
financial advice and assistance with tax returns; or
companionship, affection and emotional support.

If the claimant is a family member, they must show that this kind of support was “something extra” over and above what could normally be expected of a relative.

For example, the Court has found that a stepson’s frequent calls and visits to his stepfather and “odd jobs” around the house were normal in the context of the relationship. By contrast, carrying out significant maintenance and improvements to a house and providing full-time care is usually considered to be beyond what is normally expected.

Were the services related to the promise?

You must show that the promises was made, at least in part, to reward the you for services or work, either performed in the past or expected in the future.

That connection may be expressly stated by the deceased or more commonly inferred from the circumstances. The greater the services or work, the more likely the court is to infer that the promise was made as a reward for the services or work.

All TPA cases are depend by their distinctive facts. We are happy to discuss with you the merits of a potential claim that you have, or that someone else has made against an estate.

For more details on how much you might receive in a successful claim, see this article.

This article is general in nature and is not a substitute for legal advice. You should talk to a lawyer about your specific situation. Reproduction is permitted with prior approval and credit being given back to the source.

What is the minimum age of a trustee?

We often get asked about whether a young person can become a trustee. There are a few points to consider which we are going to go into here. The minimum age of a trustee is 18 years old under the Trusts Act 2019 (Trusts Act) under sections 15 and 20. However, the minimum age of an officer of a charity is 16 years old, as long as one of the trustees of the charity is at least 18 years or older.

How does this work?

An officer in relation to a charitable entity is someone in a position of significant influence over substantial decisions of the entity. It includes trustees of a trust, a member of a board, and a person occupying any other position that allows them to exercise such influence.[1] It also includes a person with powers conferred on them to make decisions which would otherwise fall to trustees, members of the board or the entity’s governing body.

Charities Services has stated that any person under the age of 16 is disqualified from being an officer under section 36B of the Charities Act 2005 (Charities Act). This acknowledges that people of 16 or 17 years of age can partake in charitable work as an officer. Charities are still required to have at least one officer that is 18 years or older as an essential requirement under section 13 of the Charities Act. The difference in age requirements for trusts and charities comes down to the responsibilities in each role, specifically in entering contracts and holding property.[2]

So, where someone of the age of 16 or 17 cannot be a trustee of a trust they may be an officer of a charity if there is at least one officer that is 18 years or older at any given time.

What does this mean for charitable trusts?

Where a charitable organisation wishes to be a charitable trust, the officers all need to be 18 or older to comply with the Trusts Act. If the charity wishes to be an incorporated society, they require one person that is 18 years old or older to be the contact person.

How about for an incorporated society?

Incorporated societies allow under 18-year-olds to be officers provided they are not under the age of 16 years of age.[3] However, the Incorporated Societies Act 2022 requires every society to have at least 1 contact person who is at least 18 years of age.[4]

How about for a charitable company?

The Companies Act 1993 provides that anyone under the age of 18 are disqualified from being a director of a company. The Charities Act 2005 confirms that individuals that are disqualified under the Companies Act are also disqualified from being officers of charitable entities also. This means directors of charitable companies must be 18 years or older.

We have supported many charities and produce lots of free guides such as the Charities in New Zealand Legal Handbook. If you have any further queries please do not hesitate to contact one of our experts at Parry Field Lawyers- stevenmoe@parryfield.com, sophietremewan@parryfield.com, or annemariemora@parryfield.com

This article is general in nature and is not a substitute for legal advice. You should talk to a lawyer about your specific situation. Reproduction is permitted with prior approval and credit being given back to the source.

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[1] Charities Act 2005, s 4 meaning of “officer”.

[2] Contract and Commercial Law Act 2017, s 86.

[3] Incorporated Societies Act 2022, s 47.

[4] Incorporated Societies Act 2022, s 113-114.

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