Wills - Parry Field Lawyers

KiwiSaver is a superannuation scheme in New Zealand that is popular with many Kiwis not only for saving for retirement, but also for first home buyers saving for a deposit. But have you ever considered what happens if you pass away before you have withdrawn your KiwiSaver funds? What happens to the money in your KiwiSaver account when you die?

Where you have signed a Will, upon your death the full balance of your KiwiSaver will be paid to your estate. If the balance in your account is less than $15,000.00, it will be able to be paid automatically. If the balance is more than $15,000.00, however, probate (an order from the court allowing the distribution of your account funds) will need to be issued.

What happens if you don’t have a Will?

It is important to note that if you pass away without a Will (this is called “intestate”), the process will be more complicated and expensive. You should also be aware that without a Will, you cannot be assured that your assets will be distributed to those whom you intend. For more information on the importance of having a Will and what happens if you pass away intestate, see our article here.

Example:

Jane is in her early twenties and is saving up for a deposit for her first home. Jane currently has $16,000.00 in her KiwiSaver. She also has $12,000.00 in a savings account. She has never really considered signing a Will, and is planning to look into it once she has purchased her home and is all settled in. However, Jane is in a tragic car accident and is killed instantly. Because she passed away intestate, her assets were distributed in accordance with the Administration Act 1969. Several issues arose from Jane passing away without a Will that could have been avoided:

1. Jane had intended for her assets to be distributed to her niece upon her death. Because she had not expressly stated those wishes in a Will, her assets were instead distributed equally to her parents.

2. Secondly, because Jane’s assets exceeded the $15,000.00 threshold, her family had to apply to the court for probate. Because she had not signed a Will appointing an executor, her family also had to apply to the court for the appointment of an administrator – someone who is given authority by the court in the absence of a Will to deal with the estate. This was a costly process (both financially and time-wise) and caused a lot of stress for her family that could have been avoided if she had signed a Will.

How can we help you?

We would advise that you sign a Will if you are over 18 years old, even if you only have a few assets.

If you would like any assistance with drafting and signing a Will, reviewing your existing Will, or if you have any questions in relation the issues raised in this article, please feel free to get in touch. We have teams in our Riccarton, Rolleston and Hokitika offices that would be happy to assist you.

For more information, please feel free to contact Paul Owens – paulowens@parryfield.com or Luke Hayward – lukehayward@parryfield.com or give us a ring on 03 348 848

Can it be fair for everyone?

Making sure everyone you care about gets a fair share of your property after you die is an issue most of us grapple with. This may also have additional complications when you have a blended family. It’s not always as easy as just writing your Will and specifying who gets what. There are several statutes that give family members and/or your new partner’s family, a right to contest your Will. The two main statutes are the Family Protection Act 1955 (FPA) and the Property (Relationships) Act 1976 (PRA).

Leaving it all to your partner?

A common way of structuring your affairs is to leave everything to your partner or spouse, knowing they will provide for your children as well as their own in their Will. These are often called ‘mirror Wills’. Unfortunately, this structure doesn’t always satisfy all the children involved, as we have seen in several recent court cases. You also run the risk of your partner or spouse changing their Will at a later date after you have died.

• Claims from the children: The FPA allows family members to make a claim against your estate if they believe they have not been properly provided for. This can happen even if your spouse has a ‘mirror Will’ which will leave the whole estate to your children as well as their own when they die. An example of this blended family situation is the Chambers case, which has recently received media attention. Lady Deborah Chambers QC was left everything by her husband, Sir Robert Chambers, on the understanding that when she died, her estate would be split into four parts, going equally to Sir Robert’s two sons and to Lady Deborah’s two daughters. One of Sir Robert’s sons successfully brought a claim against his father’s estate under the FPA, despite having his own lucrative income and not being in any financial need.

• Your spouse could change their Will: If your partner or spouse outlives you by some time, there is the possibility that they may change their Will as their circumstances change. They may remarry, have a new relationship, or more children may be brought into the family. This could mean that the portion of your estate that you envisioned being left to your biological children is now eroded by your partner leaving more to new partners or children than you had never anticipated.

Leaving it all to your children?

In light of these two options, it may be tempting to consider leaving your estate entirely to your children. Unfortunately, doing this can bring similar problems. Your partner could bring the same claim that your children could under the FPA or they could make an application under the PRA.

Property (Relationships) Act 1976

The PRA allows your partner to make an application to have your estate divided as relationship property, rather than in accordance with your Will. Under current law, you have a duty to provide for the partner you leave behind. If an application is made under the PRA, any relationship property is divided accordingly and the balance of the estate is distributed according to your wishes. Again, this may leave your loved ones with a different portion than you envisaged. You also need to know that jointly-owned property is automatically transferred to the survivor and does not form part of your estate.

Possible solutions

To find a solution that works best for your family and fits your wishes, do discuss this with us as one size definitely doesn’t fit all. Some options are:

• Contracting out agreements: you come to an agreement with your partner which overrides the PRA;

• Setting up trusts in your Will or before you die: if established correctly, trusts can be effective in defeating claims through the FPA and the PRA; and

• Life interest Wills: leaving your spouse an interest in your property during their lifetime, but that interest will expire on their death and the property will be distributed to your children. The above points merely brush over some issues in what is an incredibly murky and complex area of law. If you are in a blended family situation, let’s discuss the options in order to structure your affairs in a way that works best for you and your family.

How can we help?

We have dedicated teams based in our Riccarton, Hokitika and Rolleston offices who give advice on a variety of different asset protection, succession planning, family and relationship property matters. If you have any questions arising out of the issues raised in this article, please feel free to contact Nicole Murphy – nicolemurphy@parryfield.com or give us a call on (03) 348 8480.

Used by permission, Copyright of NZ Law Limited, 2018

Do you have a current Will? Do you need one?

In this past year you may have bought a house, established a business, moved in with your partner, welcomed a baby, booked your big OE or perhaps there are wedding bells on your horizon. Whatever this year has brought you, now is an opportune time to ensure that your Will reflects your current situation. If you don’t have a Will, now is the time to get one.

Death isn’t a pleasant topic, yet it’s an important one that’s often avoided by New Zealanders, particularly those in their 20s, 30s and 40s.

When a young New Zealander passes away they often do so without a Will. Although discussing one’s mortality can feel uncomfortable, knowing that you have a valid Will can provide you and your family with the peace of mind that your final wishes are known and will be adhered to.

When thinking about a Will there are some important questions you need to ask yourself.

Who should be the executor and trustee?

All Will-makers must appoint an executor and a trustee. An executor obtains probate for your Will from the High Court and your trustee carries out your wishes. Although the executor and trustee are separate roles you may appoint the same person to fulfil both.

Quite commonly a Will-maker will appoint a family member to these positions. However, it’s important that you think about whether a person is suitable for such a role in regard to the dynamics of your family.

Keep in mind that in times of grief many people will operate on the periphery of their personalities. Ask yourself whether appointing certain people could cause strain on your family’s relationships. For example, if your parents are separated, will choosing one over the other cause unnecessary friction?

If you choose not to have a family member or if the distribution of your estate is likely to be complicated, you may prefer to appoint your lawyer or a trustee company.

What are my final wishes?

In your Will you instruct your trustee to distribute your estate to whomever you wish, for example you may like to:

Leave your property to your partner, children, grandchildren, other family members or friends you wish to provide for
Leave some of your property, money or other assets to a family trust
Specifically leave items such as cash, jewellery, artwork or furniture to particular friends or family members
Leave money to a specific charity or organisation
Give instructions to your executors if you own a business, and
Instruct your executor as to how you would like your body to be handled, whether you’d like to be cremated or buried (and if so, where?) and how you would like your funeral to be conducted.

If you are a young person and have assets, which could include insurance policies, but do not have a Will then on your death your parents would need to apply to the court to administer your estate. This is very difficult for a grieving parent as generally under the law they are the ones to inherit. They are left feeling that they are trying to benefit from your death. If, however, you have left a Will under which your parents benefit then they know that was your wish and are left feeling more comfortable.

When drafting a Will keep in mind that you may be obligated to provide for particular people (such as your spouse or partner, children and so on) under the Family Protection Act 1955, the Property (Relationships) Act 1976 and the Testamentary Promises Act 1949.

How will I pay for a funeral?

Money is the last thing people want to think about when grieving. Therefore it’s practical to give this question some serious thought. Many young New Zealanders are only beginning to build their capital and many have substantial debt. Accordingly you may want to contact your insurance provider about both life and funeral coverage insurance.

Funerals can cost thousands of dollars. If it’s unlikely that your estate could cover your funeral costs, preparing for the future will save your loved ones unnecessary financial strain.

The same can be said if you are servicing a mortgage. You may want to ensure that you have insurance cover for your mortgage and also have income protection insurance for your partner and/ or children.

Who can draft a Will?

In order for your Will to be legally valid:

You must be 18 years old or over,
It must be in writing,
It must be signed by you, and
It must be witnessed and signed by two people who are not benefiting under the Will.

It’s very important that anyone who has assets also has a current Will. Make yourself a time in the next few weeks to think about the questions we’ve posed above. If your Will needs updating or you need to make your first-ever Will, do get in touch with us as soon as possible to discuss your wishes. It will give you and your family great peace of mind to have this End of Year Resolution ticked off.

Used by permission, Copyright of NZ Law Limited, 2017

This article is not a substitute for legal advice and you should talk to a lawyer about your specific situation. Please contact Ken Lord at Parry Field Lawyers (348-8480) kenlord@parryfield.com

Many people do not realise that a Will, even if signed correctly, can still be challenged after a person dies.

It is important, therefore, to give careful consideration as to how to distribute your property on death, to limit the risk of a bitter (and potentially expensive) dispute between family members or loved ones after you die.

Who do I need to provide for in my Will?

Under the Family Protection Act you owe a duty to provide “adequate provision” for the proper maintenance and support of your:

Spouse, civil union partner or de facto partner (this duty is paramount).
Your children;

In some circumstances, you may also owe a duty to:

your grandchildren (especially if their parents are deceased or if their parent is unable to provide for them),
your stepchildren (if you were maintaining them or were eligible to maintain them immediately prior to your death) or
your parents (if you had been maintaining them immediately prior to your death or you have no surviving spouse/partner or children).

What is adequate provision?

Each case depends on its own facts. The Court looks at a range of factors including:

The size of your estate (the property you own/have an interest in);
The age of the person(s) claiming;
The financial need of the person(s) claiming;
The closeness of the relationship;
Whether the person(s) claiming has already been provided for during his/her lifetime;
Whether there are other competing claims;
Your reasons for why you have structured your Will as you have.

For example, the amount that you will need to provide for your young children differs to that of adult children. Your duty to provide for children who have regularly assisted you in your senior years may differ to a child who you have been estranged from for the last 30 years.

Where you have a duty to provide for more than 1 person, thought will need to be given as to how you can provide for them all.

What can the Court do if I have not made adequate provision?

The Court can adjust what provision is made for the person claiming under your Will. If the Court does this, this will mean that the share of others under your Will will be reduced.

Will the Court always make changes?

No, not necessarily. The Courts recognise a person’s right to distribute their assets as they see fit. They will only intervene to the extent necessary to provide the person claiming with adequate provision, taking into account the factors set out above.

What about my spouse or partner? Are there any other ways they can claim against my property?

On your death, your spouse/partner is entitled to choose to either:

Take what is provided for them in your Will (if anything); or
Choose to make an application under the Property (Relationships) Act for division. If this is done, it is presumed that all “relationship property”, which includes items such as the family home, family chattels and all property acquired by either spouse/partner after the commencement of your relationship, will be shared equally.

If, in your Will, you give your spouse/partner less than half of what they would be entitled to under the Property (Relationships) Act, there is a significant risk that they will choose to make a claim under that Act, rather than elect to take under your Will.

To limit the risk, you and your partner/spouse would need to enter into a Contracting Out Agreement limiting your partner/spouse’s right to claim half your relationship property on death.

Are there any other ways my will can be attacked?

Your Will could also be attacked if you made a promise during your lifetime to provide for someone in your Will who carried out services or work for you. The Court could declare that that person has a right to be provided for from your estate.

Services can include not only things done for you during your lifetime, but also companionship, affection and emotional support (if it exceeds what would be normally expected of that person).

The amount of payment will not necessarily be what you promised them. The Court will consider:

The circumstances in which the promise was made, the services were provided or the work was performed;
The value of the services or work;
The value of the promise;
The size of your property; and
The nature and amounts of other competing claims.

What can I do to prevent claims against my estate?

The most important thing you can do is to discuss your wishes, your personal circumstances and your property with your lawyer at the time you are making your Will. This is especially important if you have children from a previous relationship to your current one or if you do not want to equally provide for your children.

Other things you can do include:

Keeping written notes of why you have made your Will as you have (especially if you suspect that there may be future issues). These notes often sit alongside the original of your Will and will assist the Court if a claim is ever made.
If your personal circumstances change, then consider reviewing your Will (e.g. if you have children, or if you marry/enter a de facto relationship, separation or divorce). Marriage automatically ends a Will, unless the Will was made in contemplation of your marriage. Divorce automatically ends any provision for your spouse/partner under the Will unless the Will states that the provision will continue on divorce.
Talk to your solicitor about protecting separate assets of yours which you do not want your spouse/partner to share in. A contracting out agreement (also known as a prenuptial agreement) might be appropriate as noted above.
Be careful about making promises to people to provide for them in your will.

Should you need any assistance with this, or with any other matter, please contact Paul Cowey at Parry Field Lawyers (348-8480).