DK Legal - Blog

NZ Probate Unpacked: Your Essential Guide to Executor Duties & Avoiding Delays

Mon, 19 Jan 2026 00:00:28 GMT

The NZ Probate Process: A Step-by-Step Guide for Executors

Key Takeaways

Probate is a High Court order confirming a will is valid and giving the executor authority to act.
A grant of probate is generally required if the deceased owned land or held over $40,000 in a single institution for some classes of assets. .
All NZ probate applications are processed centrally through the Wellington High Court.
Executors carry personal liability and must wait at least six months before final distribution to protect against claims.
Engaging a lawyer ensures all prescriptive High Court forms are filed correctly to avoid delays.

Being named an executor is a significant responsibility that often arrives during a time of personal grief. It is a role built on trust, requiring you to manage the legal and financial affairs of someone who has passed away. At DK Legal, we support executors by providing the clear, calm guidance needed to navigate the High Court requirements and estate administration duties.

The deceased person’s property, investments, and personal items are collectively known as their estate. As an executor, your primary duty is to carry out the instructions left in the will. This involves safeguarding assets, paying debts, and eventually distributing the remaining estate to the beneficiaries. Because executors are fiduciaries, they must act with absolute honesty and impartiality. Seeking professional advice is a practical step to ensure you meet your legal obligations and protect yourself from personal liability.

Understanding When Probate is Required

Probate is a specific High Court order that confirms the will is the last valid will of the deceased and formally recognises your authority as executor. While many people believe every death requires probate, the necessity depends on the nature and value of the assets involved.

Probate is mandatory if the deceased owned land or real estate in their own name. It is also required when a person held more than $40,000 with a single institution, such as a bank or KiwiSaver provider. If the estate consists only of small sums or assets held in joint names, you may be able to administer it using only a death certificate and a copy of the will.

When a person dies without a valid will, the process changes. This is known as dying intestate. In these cases, a court order called letters of administration is required to appoint an administrator to deal with the estate under New Zealand’s intestacy laws. For more information on why maintaining a current will is vital to avoid these complications, you can read our guide on why having a will matters .

The Seven-Step Probate Journey

The path from locating a will to receiving a grant of probate follows a strict legal sequence. Following these steps carefully helps prevent the High Court from issuing requisitions, which are formal requests for more information that can delay the process by weeks.

Step 1: Locate the Original Will

The first task is securing the original, physical will. Photocopies are insufficient for a standard probate application. Most original wills are held in a solicitor’s deeds system. You must also obtain the official death certificate from the funeral director or Births, Deaths and Marriages.

Step 2: Assess the Estate Value

Review the deceased’s assets to confirm if probate is necessary. Take a farm owner, for example. If they owned the land in their sole name, probate is an absolute requirement regardless of the cash in their bank accounts. Conversely, a small estate with no land and modest savings might be settled without court intervention.

Step 3: Engage Legal Support

While executors can technically apply for probate themselves, the High Court Rules 2016 prescribe very specific forms and language. Most executors choose to work with a lawyer to ensure the application is flawless. We assist by gathering the necessary details of assets, debts, and beneficiaries to build a complete picture of the estate.

Step 4: Prepare the Affidavit and High Court Forms

The application includes various forms. The most critical document is your affidavit, a formal statement where you swear or affirm your identity, your relationship to the deceased, and your belief that the document presented is the final will. Any irregularities, such as staple marks indicating a missing attachment or handwritten alterations, must be explained in this affidavit.

Step 5: File with the Wellington High Court

Since 2013, all New Zealand probate applications are filed centrally at the Wellington High Court. The application must include the original will, the signed affidavit, and the prescribed High Court fee, which is currently $269. We handle the couriering of these documents to ensure they reach the Probate Unit safely.

Step 6: Respond to Court Requisitions

The Court sometimes asks for clarification, especially if an executor lives overseas or if there are questions about the will’s condition. Our role is to manage this correspondence and draft any supplementary affidavits required to satisfy the Court’s concerns.

Step 7: Receive the Grant of Probate

Once the Court is satisfied, they issue the formal Grant of Probate. Straightforward cases usually take between four and eight weeks, though High Court backlogs can occasionally extend this to several months. You must wait for the grant before transferring or selling significant assets.

Administering the Estate After Probate

Receiving the grant of probate is the beginning of the practical administration phase. You will use certified copies of the grant to prove your authority to banks, insurance companies, and Land Information New Zealand. This allows you to close accounts, sell property, and call in funds from KiwiSaver or life insurance policies.

A common mistake is distributing the estate too quickly. New Zealand law allows a six-month window after the grant of probate for claims to be made against the estate under the Family Protection Act or other legislation. Executors who distribute the entire estate before this period expires can be held personally liable if a successful claim arises later. We advise keeping clear records and maintaining a dedicated estate account to manage funds during this period.

Effective communication with beneficiaries is essential. Regular updates help manage expectations and reduce the likelihood of disputes. If the estate involves complex structures like family trusts, you may also need to understand the duties outlined in the trustee's handbook to ensure all entities are managed in harmony.

Protecting Your Future Executors

The complexity of the probate process is often determined by the quality of the will left behind. A clear, professionally drafted will makes the executor’s job significantly easier and less expensive. Statistics show that less than half of New Zealand adults have a will, leaving many families to navigate the more difficult "letters of administration" process during a time of loss.

You can reduce the burden on your own loved ones by ensuring your affairs are in order today. Our team provides modern, accessible options for estate planning, including an online will service that allows you to start the process from the comfort of your home. Whether you are currently acting as an executor for an estate or looking to simplify the future for your own family, we are here to provide the expert support you need.

Executor in NZ: Your Essential Guide to Probate & Estate Duties (Avoid Personal Liability!)

Sun, 18 Jan 2026 23:53:42 GMT

The Role of an Executor: A Guide to Administering an Estate and Probate in NZ

Key Takeaways

Probate acts as the formal High Court confirmation that a will is valid and an executor has the authority to act.
Executors carry personal legal liability for the estate, making accurate record-keeping and timing essential.
New Zealand law generally requires a six-month waiting period after probate before distributing assets to protect against potential claims.
Professional legal guidance ensures executors meet their fiduciary duties while reducing the stress of administration during bereavement.

Losing a loved one brings a significant emotional burden, often compounded by the immediate need to manage their financial and legal affairs. If you have been named as an executor in a will, you have been entrusted with the responsibility of winding up the deceased person’s estate. This role involves specific legal obligations that begin the moment a person passes away and continue until the final asset reaches the correct beneficiary.

At DK Legal, we assist families through the complexities of estate administration. We believe that understanding the process clearly from the start provides the peace of mind needed to navigate this challenging time with confidence.

Understanding Probate in NZ

Probate serves as a formal order from the High Court of New Zealand. It proves the validity of the deceased person’s last will and confirms your appointment as the executor. While the will names you, probate provides the legal "teeth" required to deal with third parties like banks, insurance companies, and the Land Titles Office.

High Court involvement becomes necessary when an estate holds significant assets. In New Zealand, the Ministry of Justice sets a filing fee of $269 for probate applications. Most financial institutions require probate to release funds if the deceased held an asset worth more than $40,000. For estates with total values exceeding $40,000, probate is almost always a mandatory requirement before any administration can proceed.

Small estates falling below these thresholds may sometimes be settled without a court order, though the executor remains responsible for the correct distribution of those funds. Most applications are processed through the Wellington High Court, typically taking between four and eight weeks, though backlogs can occasionally extend this timeframe.

The Executor’s Checklist: From First Steps to Final Distribution

The role of an executor involves a logical sequence of tasks. Breaking these down helps manage the workload and ensures no legal requirements are overlooked.

Immediate Responsibilities

Your duties begin with locating the original will and making funeral or tangi arrangements. The executor holds the final say on these arrangements, though they should consult with the family and consider the deceased’s known wishes. During these early days, you must also secure the deceased’s property. Take a farmer, for example. If they pass away, the executor must immediately ensure livestock are cared for, the home is insured, and any business assets are protected from loss or damage.

Applying for Probate

Once you have identified the assets and liabilities, you must apply for probate. This involves submitting the original will along with an affidavit of death to the High Court. Because this is a technical legal process, most executors engage a law firm to prepare the documents and ensure the application meets the strict requirements of the High Court Rules.

Gathering and Managing Assets

After the High Court grants probate, you gain the authority to collect the estate’s assets. This includes closing bank accounts, selling shares, and potentially selling or transferring real estate. You must also identify all debts, including outstanding taxes, utility bills, and funeral costs. All estate funds should be held in a dedicated solicitor’s trust account or an estate bank account to keep them separate from your personal finances.

Core Legal Duties and Risk Management

An executor is a fiduciary. This means you must act with the highest standard of honesty and integrity. You are legally required to act in the best interests of the beneficiaries and remain impartial if disputes arise. If an executor mismanages assets or fails to pay creditors before distributing funds, they can face personal liability for those losses.

New Zealand law places a heavy emphasis on "even-handedness." You must treat all beneficiaries fairly according to the terms of the will. These responsibilities often mirror those of a trustee. For those managing complex family structures, our guide on trustee duties and responsibilities in NZ provides further context on these fiduciary obligations.

Executors generally perform their duties without payment unless the will specifically authorises a fee. However, you are entitled to be reimbursed from the estate for all reasonable expenses incurred, such as travel, valuations, and legal fees.

The Six-Month Rule and Potential Claims

One of the most common mistakes executors make is distributing the estate too quickly. In New Zealand, certain family members or partners may challenge a will under the Family Protection Act or the Property (Relationships) Act. These claims usually must be filed within six months of the grant of probate.

Distributing the estate before this six-month window closes exposes the executor to personal risk. If a successful claim is made and the money has already been given to beneficiaries, the claimant may look to the executor to make up the difference. Waiting at least six months ensures that all potential claims have surfaced before the final funds leave the estate account. Consequently, even a straightforward estate administration often takes between six and twelve months to complete.

Seeking Professional Support in Hawke’s Bay

The administrative burden of being an executor can be heavy, especially when you are also grieving. You have the right to seek professional help. Whether you need us to handle the entire process or simply prepare the probate application, our team at DK Legal provides practical, straight-up advice to keep the process moving forward.

If you find the role too overwhelming or feel a conflict of interest exists, you may have the option to renounce your role before you begin acting. Early intervention and proactive legal advice are the best ways to prevent family disputes and ensure the deceased’s wishes are honoured without unnecessary delay.

The complexities of probate highlight why a well-drafted will is so important. Ensuring your own affairs are in order makes the path much easier for your own executors in the future. You can learn more about why having a will matters or use our streamlined service to make a will online today.

NZ Property Titles Explained: Freehold, Cross-Lease, Unit Title & Leasehold Decoded

Sun, 18 Jan 2026 22:48:26 GMT

Cross-Lease, Freehold, or Unit Title: Understanding Your Property Title

Key Takeaways

Freehold (Fee Simple) provides the highest level of ownership and control over land and buildings.
Cross-lease titles require neighbourly consent for structural changes and rely on an accurate flats plan to remain valid.
Unit titles involve shared ownership of common areas and mandatory participation in a Body Corporate.
Leasehold properties involve owning the building while paying ground rent to a separate landowner.
Thorough due diligence by a property lawyer is essential to identify defective titles or restrictive covenants before you sign.

When you find the perfect home in Napier or a productive block of land in Hastings, it is easy to focus on the kitchen layout or the soil quality. However, the most critical part of your purchase sits in a digital file at Land Information New Zealand. The record of title acts as the engine under the hood of your property. It dictates exactly what you own, who else has rights to your land, and what restrictions might stop you from building that dream deck or shed.

At DK Legal, we see property law as the foundation of your investment. New Zealand uses four main types of property ownership: freehold, leasehold, unit title, and cross-lease. Each carries distinct legal rights and responsibilities that can affect your resale value and your daily life.

Fee Simple: The Gold Standard of Ownership

Fee simple, commonly known as freehold, is the most straightforward form of ownership in New Zealand. When you buy a freehold property, you own both the land and the buildings outright. This ownership lasts indefinitely and offers the greatest level of control over how you use the land.

While freehold offers the most freedom, it remains subject to local council zoning, building consents, and any specific interests registered on the title. Freehold titles often come with additional layers. These might include easements for water rights, access tracks for neighbouring farms, or environmental covenants that protect native bush. We always check these details to ensure your intended use of the land aligns with what the law allows.

You can learn more about the essential checks for any title on our Conveyancing and Property Law service page.

Cross-Lease: The Shared Ownership Hybrid

Cross-leases became popular in the 1960s as a way for developers to bypass strict subdivision rules. Today, they represent a significant portion of the housing stock in established suburbs. A cross-lease title means you own an undivided share of the freehold land in common with your neighbours, while also holding a lease for your specific dwelling.

This structure creates a unique set of rules. Most cross-lease documents require you to get written consent from all other owners on the title before you start any structural alterations. This includes extensions, conservatories, or even fences in some cases. If a previous owner built a garage that does not appear on the official flats plan, the title is considered defective. Correcting a defective title often takes time and can come at quite a cost. We recommend reviewing the flats plan against the physical property early in your due diligence process.

Unit Titles and the Body Corporate

Unit titles, or artist estates, are the standard for apartments and many modern townhouse developments. When you buy a unit title, you own your specific unit and a share of the common property, such as driveways, lifts, and gardens. Ownership is governed by the Unit Titles Act 2010.

Every unit owner is automatically a member of the Body Corporate. This group manages the insurance, maintenance, and long-term planning for the entire complex. Recent updates through the Unit Titles Amendment Act 2022 have strengthened governance, particularly for large complexes with ten or more units. Buyers must review disclosure statements and Body Corporate minutes to understand the annual levies and any upcoming special levies for major repairs. If you are considering a townhouse, we can help you analyse these documents to ensure the Body Corporate is financially healthy.

Leasehold: Owning the Building, Not the Land

Leasehold properties are less common but appear in certain coastal and commercial areas of Hawke’s Bay. In this arrangement, you purchase the right to use the land and buildings for a set period, but a separate entity owns the land itself. You pay ground rent to the landowner, which is reviewed periodically.

Leasehold ownership carries specific risks. Ground rent reviews can lead to significant cost increases, and as the lease term gets shorter, the property often becomes harder to finance and sell. The property eventually reverts to the landowner when the lease expires unless a renewal is negotiated. We strongly advise having our team review the lease document and rent review clauses before you commit to a leasehold purchase.

Why Professional Title Due Diligence is Non-Negotiable

The type of title you hold dictates your level of control and your future costs. A freehold property might seem simple, but a hidden easement could prevent you from building over a sewer line. A cross-lease property might look perfect, but a missing signature from a neighbour could stall your renovation plans for years.

Our role is to translate the legal jargon into clear, actionable advice. We identify the red flags, from under-funded Body Corporates to restrictive covenants that limit your ability to run a home business. Engaging a lawyer before you sign a Sale and Purchase Agreement allows us to insert the necessary conditions to protect your interests.

If you are ready to take the next step in your property journey, you should consider what conditions are right for your specific situation. You can find more information on essential contract conditions here .

Whether you are a first-home buyer or managing a large-scale rural acquisition, the team at DK Legal provides the expertise you need for peace of mind. Contact us today to discuss your property plans.

NZ Business Structures Explained: Sole Trader, Partnership, or Company?

Wed, 14 Jan 2026 00:08:05 GMT

Choosing the Right Business Structure for Your New Venture

Key Takeaways

Your business structure determines your personal liability and how much tax you pay.
Most New Zealand businesses operate as sole traders, companies, or partnerships.
GST registration becomes compulsory once your annual turnover reaches 60,000 dollars.
A limited liability company provides a separate legal identity, protecting your personal assets from business debts.

Understanding the Foundation of Your Business

Starting a new venture is a significant milestone. Whether you are launching a boutique business, taking over a family orchard, or starting a trade, the very first decision you make is often the most consequential. We view your business structure as the legal foundation of everything you do. It shapes your exposure to risk, your tax obligations, and your ability to grow or sell the business later on.

The scale of small business in our country is immense. According to Stats NZ, as at February 2025, New Zealand had 617,330 enterprises. Perhaps more telling is that 74% of these enterprises had no paid employees. These are owner-operators and very small businesses where the line between business and personal life is often thin. Because so many New Zealanders run these small operations, the choice of structure has direct, household-level consequences. If the business hits a rough patch, the structure you chose on day one determines if your family home is at risk.

The Sole Trader: Simplicity and Personal Risk

Many people begin their journey as sole traders because it is the easiest and cheapest way to get started. You are the business. There is no separate legal entity, which means you have full control and keep all the profits. However, this simplicity comes with a significant trade-off. As a sole trader, you face unlimited personal liability for all business debts and legal actions. If a contract goes wrong or a debt cannot be paid, your personal assets are on the line.

We often see tradies or consultants start this way to keep admin costs low. While it works for some, the lack of separation can become a burden as the business grows. Most businesses in New Zealand are sole traders, companies, or partnerships, but the transition to a more formal structure often happens when the risks start to outweigh the ease of operation. If you are hiring staff or taking on significant commercial leases, the sole trader model may no longer provide the protection you need.

Partnerships: Sharing the Load and the Liability

A partnership involves two or more people sharing the costs and profits of a business. This is common in professional services or family-run operations. Like a sole trader, a partnership is not a separate legal entity. This means partners share the liability for business debts. In our experience, the biggest risk here is joint and several liability. This legal concept means you can be held responsible for the full amount of a partnership debt, even if your partner was the one who incurred it.

We always recommend a formal partnership agreement to clearly define roles, profit sharing, and what happens if someone wants to leave. Without this, you rely on default laws that might not suit your specific situation. For those operating in the Hawke’s Bay agribusiness sector, partnerships are often used for family farms, but they require careful management to ensure everyone is protected and the business remains viable for the next generation.

The Limited Liability Company: Built for Growth

A company is the preferred path for most serious, long-term ventures because it creates a separate legal entity. This separation is the cornerstone of modern commerce. It means the company owns the assets and incurs the debts, not the shareholders personally. This protection, known as limited liability, generally makes capital raising and investor confidence easier to manage. In a competitive environment, getting your business structure right at the outset is critical because changing it later can be costly and complex.

Operating a company brings more administration, such as filing annual returns and following the rules set out in the Companies Act. However, the benefits often outweigh the paperwork. For founders, we provide comprehensive company and commercial law advice to ensure you meet your obligations as a director while protecting your interests. A company structure is built for growth, making it much simpler to bring in new shareholders or eventually sell the business.

Tax and Compliance: The Numbers That Matter

Your choice of structure significantly impacts your tax bill. It is important that these initial discussions on structure are had in conjunction with an accountant to ensure that your structure is fit for purpose and the most effective for you.

Making the Right Choice for Hawke’s Bay

Our region has unique requirements. We have a high concentration of agribusinesses, orchards, and businesses operating on Māori land. These factors add layers of complexity to the standard business structures. For example, succession planning for an orchard involves more than just changing a name on a share register. It involves water rights, land titles, and family heritage. We pride ourselves on being a law firm who understand these local nuances.

A common mistake we observe is owners "locking in" a structure based on a generic online template without considering their future plane. If you intend to pass the business to your children or bring in outside investment, a sole trader setup will eventually fail you for example. You can find more detail on setting up and growing a business in our Business structuring playbook , which covers the strategic side of these decisions.

Next Steps After Structuring

Once your structure is in place, the work of protecting your business continues. Your legal foundation is only as strong as the contracts you use every day. We recommend that all new business owners prioritise robust documentation to manage their cashflow and risk. This includes having a clear set of rules for how you deal with customers and suppliers.

We often assist clients with reviewing your standard business terms to ensure they are fit for purpose. Good terms of trade help you get paid on time and limit your liability if things go wrong. Combining the right business structure with solid contracts gives you the best possible chance of long-term success. If you are ready to start or need to review your current setup, our team is here to provide the straightforward, practical advice you need to move forward with confidence.

The First-Home Buyer's Legal Checklist for Hawke's Bay

Mon, 15 Dec 2025 04:02:25 GMT

Your First Home Buyer's Legal Checklist

Key Takeaways

The most important step is to engage a property lawyer before you look at houses or sign any documents.
Your Sale and Purchase Agreement is a binding contract; it must include protective conditions for finance, a LIM report, and a building inspection.
To avoid stressful delays, you must apply for your KiwiSaver withdrawal at least 15-20 working days before your settlement date.
The pre-settlement inspection is your final opportunity to confirm the property is in the agreed condition before you take ownership.

Buying your first home is a huge milestone. It’s exciting, a little terrifying, and probably the biggest financial step you’ve ever taken.

The numbers show just how many Kiwis are in your shoes. Nationally, first home buyers now account for a record 27.7% of all property purchases. The median price paid by a first home buyer in New Zealand this year is $700,000. That’s a life-changing amount of money, and when the stakes are that high, getting the legal process right is everything.

As a firm that has helped countless people into their first homes, we’ve seen what works and what can go wrong. Think of us as your guide. This is our practical, step-by-step legal checklist to get you from dreaming about a home to holding the keys, with confidence and peace of mind.

Step 1: Get Your Ducks in a Row (Before You Start Looking)

The work you do before you even start scrolling through listings will set you up for success. Rushing this stage is a common mistake we see that often leads to stress and disappointment later on.

Engage a property lawyer early

This is, without a doubt, the most important first step. Before you talk to an agent, before you fall in love with a property, talk to a lawyer. We are your independent adviser, here to protect your interests - we only work for you.

Having an expert on your side from day one means you can get advice on the structure of your purchase, understand your obligations, and have someone ready to review an agreement before you sign it. At DK Legal, our team specialise in making the conveyancing process clear and straightforward, reducing the risks involved in the transaction.

Get your finance and budget sorted

You can’t shop with confidence if you don’t know your budget. Getting pre-approval from your bank or a mortgage adviser tells you exactly how much you can spend. It also makes your offer much more attractive to a seller.

Most banks look for a 20% deposit, but don't be discouraged if you're not there yet. Schemes like Kāinga Ora’s First Home Loan can allow you to buy with as little as a 5% deposit-know/).. Knowing your exact financial position is critical.

Step 2: Making an Offer the Smart Way

You’ve found the one. Now it’s time to make an offer. This is where having a property law expert on your team becomes invaluable.

Understand the Agreement for Sale and Purchase

The Agreement for Sale and Purchase is a legally binding contract the moment both you and the seller have signed it. There is no cooling-off period. In our experience, this is the single most critical moment to pause and get legal advice. We can review the agreement to ensure the title is sound, the clauses are fair, and there are no hidden fishhooks that could cost you dearly.

We’ll check everything from the settlement date to the list of chattels (like the oven, curtains, and heat pump) to make sure what you think you’re buying is what the contract says you’re buying.

Build in your conditions (your safety net)

A conditional offer gives you a safety net. It means your offer to purchase the property is subject to certain conditions being met. If they aren't, you can walk away from the deal without penalty. For a first home buyer, these are non-negotiable.

Finance Condition: This gives you time to get final, unconditional approval for your home loan from the lender. Unless you’re a cash buyer, this is essential.
LIM Report: A Land Information Memorandum (LIM) is a report from the local council. We review it for you to check for issues like building consents, public drainage, potential erosion or flooding risks, and any notices that affect the property.
Building Report: Always get a registered builder to conduct a thorough inspection of the property. They check for structural integrity, weather-tightness issues, and other potential defects that could turn your dream home into a nightmare.

Depending on the property, we might also recommend other conditions, like a toxicology report to check for methamphetamine contamination.

Step 3: The Unconditional and Pre-Settlement Phase

Once your conditions are satisfied, the contract becomes unconditional. The property is officially yours, pending settlement. Now, the focus shifts to the final administrative steps.

Managing your KiwiSaver withdrawal

For most first home buyers, KiwiSaver is the key to their deposit. The process is straightforward, but the timing is critical. As of 2025, the old First Home Grant is gone, so the withdrawal is the main support available. To be eligible, you need to have been a contributing member for at least three years.

You can withdraw all of your savings except for $1,000. The crucial part? You must apply through your provider at least 10 to 15 working days before settlement day, or should you be using your KiwiSaver to contribute towards the Agreement for Sale and Purchase deposit, you’ll need a finance condition of at least 10 to 15 working days.

Your KiwiSaver funds are paid directly to your lawyer’s trust account to form part of the purchase price. We manage this process for you to ensure the money arrives on time when it is required.

Do a proper pre-settlement inspection

In the few days before settlement, you have the right to inspect the property one last time. This isn’t a chance to renegotiate the price or look for new flaws. The purpose is to confirm the property is in the same condition as when you signed the agreement.

You need to check that all the chattels are still there and in working order, that the seller has moved out, and that no new damage has occurred during the move. If you had agreed on any repairs being done, this is your chance to check they’ve been completed. If you find a problem, you must contact us immediately. For a full rundown, you can read our detailed pre-settlement inspection checklist .

Step 4: Settlement Day and Beyond

This is the day you’ve been waiting for. Behind the scenes, we’re busy making it happen.

What happens on settlement day?

On settlement day, we coordinate the flow of money. We receive the loan funds from your bank and combine them with your contribution (including your KiwiSaver funds if not already used for your agreement deposit). We then transfer the required funds to the seller’s lawyer. Once they confirm receipt, they authorise the real estate agent to release the keys to you. Congratulations, you’re a homeowner!

A quick note on costs

The cost of conveyancing (the legal work for a property transaction) can vary depending on the complexity of the purchase. Is it a standard residential home, a cross-lease, or a unit title? Each requires a different amount of work. What we can promise is transparency. As we explain in our guide, we will provide a clear cost breakdown and fee estimate right from the start, so there are no surprises.

Don't forget your Will

Now that you own a significant asset, it is absolutely vital to have an up-to-date Will. It ensures that if anything happens to you, your property goes to the people you choose. It’s a simple step that provides huge peace of mind for you and your loved ones. As part of our service, we can help you prepare this.

Ready to Start Your Hawke's Bay Property Journey?

Buying your first home is a journey, not a single transaction. Our job is to take the legal weight off your shoulders so you can focus on the excitement of finding your perfect place. If you’re ready to take the first step, contact our friendly, approachable team of property law specialists today.

_Disclaimer: The information contained in this article is for general guidance and informational purposes only. It is not a substitute for professional legal advice. You should not act on the basis of this information without first seeking specific advice from a qualified professional.

Relationship Property: A Plain English Guide to 'Contracting Out' Agreements in NZ

Mon, 01 Dec 2025 08:47:58 GMT

Your Guide to Contracting Out Agreements & Relationship Property in NZ

Key Takeaways

A Contracting Out Agreement, often called a 'prenup', is a legal contract allowing a couple to decide how their property will be divided if their relationship ends, overriding the default 50/50 split.
These agreements are a sensible tool for any couple in a marriage, civil union, or de facto relationship, not just the wealthy. They provide clarity and protect individual assets.
The Property (Relationships) Act 1976 typically applies after three years, dictating an equal sharing of all relationship property.
For an agreement to be legally enforceable, both partners must receive independent legal advice from separate lawyers before signing.

Talking about money and the end of a relationship can feel awkward. We get it. But in our experience, the strongest relationships are built on trust and open communication. A contracting out agreement isn't about planning to fail; it's about planning for the future with clarity and respect for each other.

It’s a proactive step to protect what’s yours, what’s theirs, and what’s ours. With in excess of 7,000 dissolutions of marriage in New Zealand in 2024, it's a practical reality that not all relationships go the distance. This kind of private agreement provides peace of mind and a clear path forward, should the unexpected happen.

What is a Contracting Out Agreement?

A contracting out agreement is a private, written contract that you and your partner make to define how your property will be divided if you separate or if one of you passes away. It allows you to "contract out" of the standard rules set by New Zealand law, giving you control over your own affairs. You might hear it called a 'prenup' or a relationship property agreement, but they all refer to the same thing.

Understanding the Property (Relationships) Act 1976

So, what are the standard rules? In New Zealand, the division of property is governed by the Property (Relationships) Act 1976. This law's default position is straightforward: after a couple has been together for three years in a marriage, civil union, or de facto relationship, their 'relationship property' is to be divided equally. That’s a 50/50 split.

This principle of equal sharing applies to relationships of three years or more. The Act sets out what is considered ‘relationship property’ and what is ‘separate property’.

Relationship property generally includes:

The family home and any shared chattels (like furniture or cars), regardless of who paid for them.
All property acquired during the relationship for your shared benefit.
Income earned during the relationship.
Sometimes, even the increase in value of separate property if it was influenced by contributions from the other partner.

Separate property is what you owned before the relationship, as well as inheritances, gifts, or distributions from a trust received during the relationship. However, the line can get blurry. We've seen instances where a client’s inheritance was used to pay down the mortgage on the family home. In that situation, the separate property has become relationship property and is subject to the equal sharing rule. An agreement can prevent this.

Do You Need a Contracting Out Agreement?

This isn't a tool reserved for the ultra-wealthy. A contracting out agreement is a sensible idea for many couples. We often recommend making a contracting out agreement if:

You are in a new relationship: Starting with a clear understanding of your assets protects both of you.
You have children from a previous relationship: An agreement ensures you can protect assets you wish to keep for your children.
You are buying your first home: If one partner is contributing more to the deposit (perhaps from savings or a gift from family), an agreement can protect that initial investment. If you're buying a home with your partner, a contracting out agreement can clarify ownership and protect your investment.
One partner has significantly more assets or debt: An agreement can ring-fence those assets or protect the other partner from pre-existing debts.
You own a business or are in farming: It can keep your business assets separate from your relationship assets.

What Can the Agreement Cover?

Your agreement is a flexible contract that should be tailored to your particular circumstances. It can clearly define which property owned by each of you will remain separate property and which will become relationship property. You can decide on a division of property that feels fair to you both, whether that's 50/50, 70/30, or something else entirely. It can cover property you have now and even future assets you might acquire.

Thinking about this document helps you take stock of your financial situation. A contracting out agreement is a key tool in your overall asset protection strategy.

How to Get a Contracting Out Agreement That's Legally Binding

For a contracting out agreement to be legally binding and enforceable, you must follow a strict process. This is not a document you can download and sign over dinner. The requirements are there to protect both parties from being pressured or signing something they don't understand.

The agreement must be in writing and signed by both partners. Crucially, each of you must receive independent legal advice before signing . This means you need your own separate lawyers. Your lawyer who witnesses the signature must certify that they have explained the full effect and implications of the agreement to you. This process ensures there was no undue influence and that both parties understood what they were agreeing to. Without this certification, the agreement is not enforceable.

Can an Agreement Be Challenged?

Yes, but it's difficult if it was set up correctly. The Family Court has the power to set aside a contracting out agreement if it is convinced that enforcing it would cause a "serious injustice".

To decide this, the court looks at whether the agreement was fair at the time it was made and whether it has become unfair or unreasonable in light of any changes in circumstances since. This is why a "set it and forget it" approach is risky. We've seen agreements become outdated due to the birth of children, a significant increase in value of an asset, or one partner giving up their career to support the family.

The legal landscape is also shifting. The Law Commission is currently reviewing the Act and considering major changes, including to the rule that the family home is always relationship property. This potential change makes having your own private agreement even more important. Circumstances change, and so should your agreement. Already have a contracting out agreement? It might be time for a review.

_Disclaimer: The information contained in this article is for general informational purposes only and does not constitute legal advice. The law is complex and changes over time. You should consult with a qualified legal professional for advice tailored to your specific situation.

The Trustee's Handbook: Understanding Your Duties and Responsibilities in NZ

Wed, 12 Nov 2025 17:34:18 GMT

A Trustee's Guide to Trust Law and Asset Protection in New Zealand

Key Takeaways

Under New Zealand's Trusts Act 2019, trustee duties are divided into two categories: five mandatory duties that cannot be changed and ten default duties that can be modified by the trust deed.
The five mandatory duties include knowing the trust's terms, acting honestly and in good faith, and always acting for the benefit of the beneficiaries.
A common challenge arises in 'mum and dad' family trusts, where the default duty not to self-benefit can conflict with the practical reality of trustees living in a trust-owned property.
Comprehensive asset protection involves more than just managing a trust; it also includes having a valid will and Enduring Powers of Attorney (EoPAs) in place.
Seeking expert legal advice is crucial for navigating your obligations and ensuring you manage the trust correctly, avoiding potential disputes or liability.

Becoming a trustee for a family trust is a significant role. It’s an act of faith, a position of great responsibility, and something many of us in New Zealand will be asked to do at some point. But what does it actually involve? It’s a question we hear all the time from our clients.

Often, people accept the role without fully understanding the weight of the legal obligations that come with it. The introduction of the Trusts Act 2019 changed the game, clarifying the rules and making it more important than ever for trustees to know exactly what’s expected of them. We're here to break it down for you, drawing on our experience helping people across Hawke's Bay and New Zealand manage their trusts with confidence.

_Disclaimer: This article provides general information and does not constitute specific legal advice. As every trust and personal situation is unique, we recommend seeking professional guidance tailored to your circumstances.

The Two Types of Trustee Duties: Mandatory vs. Default

The first thing every trustee needs to understand is that the Trusts Act 2019 organises your responsibilities into two distinct groups. It codifies trustee duties into mandatory and default categories. Think of it this way: mandatory duties are the absolute, unchangeable foundation of your role. Default duties are the standard rules that apply unless the trust deed—the document that created the trust—specifically changes or removes them.

Understanding this distinction is the key to managing a trust correctly.

The Five Mandatory Duties: Your Non-Negotiable Obligations

These are the five duties you must always follow, no matter what the trust deed says. In our experience, these are the bedrock of good trust management and are designed to protect the beneficiaries.

The mandatory duties are foundational and ensure that trustees always keep the beneficiaries' interests at the centre of every decision. They are the core requirements that cannot be changed or excluded. Let's look at what they are:

Know the terms of the trust: You must have a copy of the trust deed and understand its rules. You can’t follow the rules if you don’t know what they are.
Act in accordance with the terms of the trust: All your actions must align with what the trust deed permits and requires.
Act honestly and in good faith: This sounds obvious, but it’s a legal requirement. Every decision must be made with genuine and honest intentions.
Act for the benefit of beneficiaries: Your primary function is to manage the trust’s assets for the people it was set up to support—the beneficiaries.
Exercise your powers for a proper purpose: You must use the powers granted to you as a trustee only for the purposes outlined in the trust deed, not for any other reason.

The Ten Default Duties: The Rules That Can Be Modified

Beyond the mandatory five, there are ten default duties. These are the standard operating procedures for a trust unless the person who set up the trust (the settlor) decided to tailor the rules differently in the trust deed. It's vital to check the deed to see if any of these have been altered.

Some of the most important default duties include:

The duty to invest prudently: You must manage the trust's property and investments with the care and skill a prudent business person would exercise.
The duty not to exercise power for your own benefit: You generally cannot make decisions that benefit you personally.
The duty to avoid conflicts of interest: You must not put yourself in a position where your personal interests conflict with your duties to the beneficiaries.
The duty to act impartially: You must treat all beneficiaries fairly and not favour one over another, unless the trust deed allows for it.
The duty to act unanimously: If there is more than one trustee, you must all agree on decisions. As the Kempsweir article notes, one of the default duties is to "act unanimously with any other trustees."

The 'Mum and Dad' Trustee Paradox: A Common Challenge

Here’s where theory meets reality. A common mistake we observe is with typical New Zealand family trusts, where the family home is owned by the trust, and the trustees (often the parents) live in it. This creates a tricky situation.

As one legal analysis points out, the default duty not to exercise powers for self-benefit contradicts how most ‘mum and dad’ trusts actually function. By living in the home, the trustees are technically benefiting from a trust asset every single day. This is a perfect example of why getting expert advice is so important. The trust deed needs to be properly structured to allow for this common arrangement without putting the trustees in breach of their duties.

Without the right clauses, trustees could face a dispute from a beneficiary down the line. It’s a potential headache that can be avoided with careful planning and the right legal structure from the outset.

Beyond the Trust: Holistic Asset & Estate Planning

Being a trustee is often just one piece of a much larger puzzle: your overall asset planning and estate management. A trust works best when it's part of a coordinated strategy that includes other essential legal documents.

Your will is the most obvious one. A will dictates what happens to your personal assets, while a trust manages the assets held within the trust. The two must work together. If you don't have a will, or it's out of date, it can create serious problems for your family.

Another critical tool is an Enduring Power of Attorney, or EPA. An EPA allows you to appoint someone you trust to make decisions about your property and personal care if you become unable to do so yourself. It’s about planning for the unexpected.

Feeling Overwhelmed? You Don't Have to Go It Alone

Reading through these duties can feel daunting. That’s completely normal. The law around trusts and estates is detailed, and the stakes are high. But you don't have to figure it all out by yourself. The role of a good trust lawyer is to provide clear, practical advice that empowers you to act confidently and correctly.

Whether you're setting up a new family trust, reviewing an old one, or need guidance on your duties as a trustee, getting expert advice is the best form of asset protection. Costs can vary depending on the complexity of your matter, but the investment in professional guidance can prevent costly disputes and liability in the future.

If you're in Hawke's Bay or anywhere in New Zealand, our team is here to help. Our team can help you make sure your affairs are in order. We can assist with your family trust, and helping with your will and EPA. Let us help you manage your responsibilities, so you can focus on what matters most—protecting the future for your beneficiaries.

The Pre-Settlement Inspection Checklist: 5 Critical Things to Look For

Thu, 23 Oct 2025 01:27:08 GMT

Your Pre-Settlement Inspection Checklist: A Buyer's Guide to a Smooth Settlement Day

Key Takeaways

The pre-settlement inspection is your final opportunity to check the property and ensure everything is in order before you take legal ownership.
Your Sale and Purchase Agreement is the guiding document; it specifies which chattels must be present and in working order on settlement day.
It's crucial to check for new damage, ensure all rubbish is removed, and verify that any contractually agreed-upon repairs have been completed.
Timing is key; aim to conduct your inspection a few days before the settlement date to allow time to address any issues that may arise.
If you find an issue, you must contact your lawyer or conveyancer immediately to discuss your options before settlement.

Buying a property is an exciting milestone. You’ve navigated the listings, attended open homes, secured finance, and signed the agreement. As settlement day approaches, there’s one final, critical step that stands between you and the keys to your new home: the pre-settlement inspection.

This isn't just a formality. It’s your last chance as a buyer to ensure the property you’re about to own is in the state you agreed to buy it in. This final walk-through is an essential safeguard that protects your investment and prevents last-minute surprises.

While there's no official statistic on how many issues are found during pre-settlement inspections, anecdotally, they are a common source of last-minute disputes. This is why a thorough check is so important. Think of this article as your personal checklist, designed to empower you to conduct your final inspection with confidence.

What is a Pre-Settlement Inspection?

A pre-settlement inspection is your contractually-given right to visit the property one last time before the final payment is made and ownership is transferred to you. Its purpose is to confirm that the property and any included items (chattels) are in the same condition they were in when you signed the sale and purchase agreement, fair wear and tear excepted.

This is not an opportunity to conduct a full building inspection or renegotiate the purchase price based on issues you were already aware of. It’s a check to ensure the seller has upheld their end of the bargain.

Timing is everything. The inspection itself should happen as close to the settlement day as practical. We usually suggest doing the final inspection at least 48-72 hours before settlement. This gives just enough time for your lawyer to rectify the situation if an issue is discovered, without causing undue delays.

_Disclaimer: This article provides general information and is not a substitute for professional legal advice. Every property transaction is unique, and we strongly recommend you contact your lawyer to discuss your specific circumstances.

Your 5-Point Pre-Settlement Inspection Checklist

To make the process less daunting, we’ve broken it down into five critical areas to focus on. Take a copy of your Sale and Purchase Agreement with you, and let’s get started.

1. Verify All Chattels are Present and Working

First things first: what are chattels? These are movable items included in the sale that aren't part of the house structure itself. Your Sale and Purchase Agreement will have a specific list of chattels included in the sale. Common examples include the oven, dishwasher, curtains, blinds, fixed floor coverings, and the heat pump.

Your job during the inspection is twofold:

Check that every chattel on the list is still there.
Check that they are in "working order".

The standard agreement is very clear on this. Clause 7.2 (1) of the agreement provides that at settlement all chattels (ovens, cook tops, dishwashers ), any systems or devices that provide services or amenities (heating, cooling, security ) are in the condition they are in when the agreement is entered into but must be in “working condition.

This means you need to physically test them. Turn on the oven and all the hobs. Run a quick cycle on the dishwasher. Switch the heat pump to both heating and cooling. Check all the garage door remotes and security alarm codes are accounted for. A common mistake we observe is a buyer assuming everything works, only to discover a faulty appliance after they’ve moved in, when it’s much harder to resolve.

2. Test Essential Systems: Plumbing, Electrical, and More

Beyond the chattels listed in the agreement, you also need to check the property’s core systems. These are fundamental to the functioning of the house and must also be in the same condition as when you signed the agreement.

During your inspection, be methodical:

Plumbing: Turn on every tap, both hot and cold. Check for good pressure. While they're running, look under the sinks for any drips or leaks. Flush all the toilets to ensure they fill correctly and don't continue to run.
Electrical: Flick every light switch on and off. A great tip is to bring your phone charger and plug it into every power point to make sure they are all live. Don’t forget extractor fans in the kitchen and bathrooms.
Other Systems: If there’s a security alarm, make sure you have the codes and that it works. Test the heated towel rails, waste disposal unit, and any integrated ventilation systems.

Finding a leaky tap or a dead power point at this stage is an issue the seller is generally obligated to fix before settlement day unless it was an issue you were previously aware of by way of your building report or disclosure from the real estate agent or the vendor.

3. Check for New Damage

Moving house is a chaotic process, and unfortunately, accidents can happen. The seller or their movers might have inadvertently caused new damage to the property since you last saw it. This is precisely what the pre-settlement inspection is designed to catch.

Walk through every room, and this time, specifically look for new issues that weren’t there when the agreement was signed. Pay close attention to:

Scratches, dents, or gouges in the floors and walls.
Cracks in windows or mirrors.
Damage to door frames or kitchen benchtops.

It's important to be clear: this inspection is not an opportunity to raise issues that would have been found in a building report, like old roof damage or pre-existing foundation cracks. This check is only for damage that has occurred since the contract was signed. If you spot something new, document it with a photo and inform your lawyer immediately.

4. Ensure the Property is Clear and Clean

The seller has an obligation to remove all of their possessions that are not included as part of the sale. This also includes all their rubbish.

Be thorough. Look in every corner of the property. Check the garden shed, the attic, under the house, and inside all the cupboards and wardrobes. We’ve seen cases where sellers have left behind old tins of paint, broken furniture in the garage, or a pile of green waste in the garden. The cost of removing this can become the buyer’s problem if not addressed before settlement.

What about cleanliness? The standard agreement usually requires the property to be left in a "reasonably clean and tidy condition". This is subjective and doesn't typically mean a professional deep clean. It means the benches should be wiped, floors vacuumed, and no significant mess or rubbish left behind. If the property is tenanted, this step is particularly vital to ensure the previous occupants moved out completely and took all their belongings with them.

5. Confirm Agreed-Upon Repairs are Complete

Sometimes, a sale and purchase agreement is made conditional upon the seller completing specific repairs or maintenance before settlement. For example, you might have agreed to the purchase on the condition that the seller fixes a broken window latch or arranges for a leaking pipe to be repaired.

Your pre-settlement inspection is the time to verify this work has been done. Bring a list of the agreed-upon repairs to the property. Check that the work has not only been done, but completed to a reasonable standard. If the seller has receipts or producer statements from the tradespeople who did the repairs to the property, it’s a good idea to ask for copies as proof of the work being completed.

If you find the repairs haven't been done or are not up to scratch, this is an issue to raise with your lawyer before settlement.

I've Found an Issue During My Inspection. What Now?

The first and most important thing to do is contact your lawyer or conveyancer immediately. Do not wait until settlement day. Time is of the essence, and you need to let your legal representative know about the problem while there is still time to find a solution.

When you raise an issue, your lawyer will formally notify the vendor’s lawyer. From there, a few things can happen:

The seller fixes the issue: The seller might arrange to fix the damage or replace the faulty chattel before settlement proceeds.
A price reduction is negotiated: You and the seller may agree that the cost of fixing the issue can be deducted from the final payment. This means you would take a reduction in the purchase price and manage the repair yourself after settlement.
Funds are held back: In some disputes, your lawyer may arrange for a portion of the purchase price to be held in their trust account. These funds are only released to the vendor once the issue has been resolved to everyone’s satisfaction.

Whatever the problem, the key is to communicate it early. Your lawyer will work on your behalf to outline your options and can negotiate a fair outcome. Trying to resolve issues after settlement is far more complicated and often less successful.

The pre-settlement inspection is your final piece of due diligence and a powerful tool for ensuring a smooth handover. It protects you, the buyer, and makes sure you get what you paid for. And that’s where we come in. At DK Legal Limited one of our biggest focuses is helping every day New Zealanders through the property law process and ensuring nothing is left to chance from the first offer to the final inspection.

If you're buying a property and need guidance on your sale and purchase agreement or planning for settlement day, don't hesitate to get in touch. Contact our friendly team today for expert, down-to-earth legal advice.

How to Choose the Right Lawyer in Hawke's Bay

Thu, 16 Oct 2025 02:26:05 GMT

Choosing Your Lawyer: A Strategic Partnership

Key Takeaways

Identifying your specific legal need is the first and most critical step in finding the right lawyer.
Look for a lawyer whose expertise aligns with your situation, whether it's property law, commercial matters, or other legal issues.
A good lawyer-client relationship is built on clear communication, and mutual understanding.
Don't hesitate to ask about experience, process, and fees during your first consultation.

Choosing the right lawyer is more than just finding someone to represent you; it's about forming a strategic partnership. In our experience, this decision significantly impacts your peace of mind and the ultimate success of your legal matters. We understand that the process can seem daunting. That's why we’ve put together this practical guide, framed from your perspective, to empower you with the confidence to make an informed choice for your legal service needs.

Understanding Your Legal Needs

Before you even begin looking, we always advise taking a moment to clearly define your legal need. Are you buying your first home? Dealing with a commercial dispute? Setting up a trust? Different legal issues require different specialisations. For instance, if you're navigating the complexities of property law, you'll want a lawyer with a proven track record in that area.

What's Right for You?

The legal field is vast, and many lawyers specialise in particular areas. A specialist lawyer will have deep knowledge and extensive experience in a specific field, such as property law, rural law, or commercial law. For significant life events like buying a home, a firm that offers stress-free property law and conveyancing services can turn a potentially overwhelming transaction into an opportunity to grow. Similarly, for businesses, expert legal advice on company and commercial matters is invaluable.

Finding Lawyers

Once you have a clear idea of your needs, it's time to start your search. Word-of-mouth referrals from trusted friends, family, or business associates can be an excellent starting point. Online directories and the New Zealand Law Society website are also valuable resources.

Preparing for Your First Consultation

Your initial consultation is a crucial step. It's your opportunity to assess whether a lawyer is the right fit for you. We always recommend preparing a list of questions. The Law Society provides a list of six key questions to ask, including "What experience do you have in matters like mine?" and "How much is this likely to cost?".

What to Ask and Consider:

Experience and Expertise: Does the lawyer have specific experience with matters similar to yours?
Communication Style: Do you feel comfortable communicating with them? Clear communication is paramount.
Fee Structure: Understand how they charge for their services. Costs can vary significantly, so ensure you get a clear breakdown of potential expenses.
Process and Timeline: Ask about the likely steps involved in your legal matter and an estimated timeline.
Values Alignment: Do their values and approach resonate with yours? This can be particularly important in sensitive legal issues.

The Importance of a Strong Client-Lawyer Relationship

Ultimately, the best lawyer for you is someone who not only possesses the right legal expertise but also aligns with your communication style. A strong client-lawyer relationship is built on trust, clear communication, and mutual respect. This partnership provides peace of mind and is, in our experience, the foundation for achieving the best possible outcome.

We encourage you to take your time, ask the right questions, and choose a lawyer who you feel confident will be a dedicated and effective advocate for your legal needs.

Disclaimer: This article provides general information and does not constitute legal advice. For specific legal advice tailored to your situation, please consult with a qualified legal professional.

The Smart Way to Make Your Will: A Guide to Valid Online Wills in NZ

Fri, 26 Sep 2025 03:58:02 GMT

A Guide to Creating Your Will

Key Takeaways

A startling 50% of New Zealand adults do not have a will, which can lead to their assets being distributed according to rigid legal formulas, not their personal wishes.
For a will to be legal in NZ, it must be in writing, signed and dated by you, and witnessed by two independent people who are not beneficiaries of the will.
A comprehensive will allows you to appoint an executor to manage your estate, name beneficiaries to receive your assets, and appoint a guardian to care for your minor children.

It’s a figure that always gives us pause. Half. Think about that for a moment. It means half of us are leaving the fate of everything we’ve worked for entirely to chance.

When you die without a will, a situation known as 'intestacy', you don't get a say in what happens next. Instead, the law steps in. The Administration Act 1969 dictates a strict formula for how your property and assets are divided. In our experience, this formula does not always match what people would have actually wanted. It can lead to unintended consequences, excluding partners in a de facto relationship or beloved stepchildren, and adding a layer of legal complexity and stress for the family you leave behind.

But there’s good news. The process of making a will has changed. You no longer need to schedule multiple appointments or feel intimidated by a formal process. The rise of online wills has made estate planning more accessible than ever, a trend confirmed by recent data showing that 70% of new wills are now initiated online.

This guide is our way of demystifying the process. We'll walk you through everything you need to know about making a will in NZ, from the legal nuts and bolts to the practical steps. It's about empowering you to protect your loved ones and secure your legacy, simply and effectively.

Why Having a Will Matters More Than You Think

A will is so much more than a financial document. It’s a final act of care for the people who matter most to you. With New Zealanders set to inherit an estimated $1.6 trillion over the next 25 years, the importance of clear instructions cannot be overstated. A well-prepared will provides clarity and peace of mind during an already difficult time.

In our work with families, we've seen first-hand how a will can minimise disputes and emotional turmoil. It's your opportunity to make crucial decisions, ensuring your wishes are respected. This includes not just who gets your house or your KiwiSaver, but also specifying your funeral preferences or making arrangements for the care of a treasured pet.

One of the most critical functions of a will, and one that is often overlooked, is the ability to appoint a guardian for your minor children.

Without a will, you have no control. Your estate is distributed according to the Administration Act, which may not align with your modern family structure or personal relationships. A legal will is the best way to help ensure your assets go to the people you intend, in the way you intend.

Are Online Wills Legal in NZ?

Yes, online wills are absolutely legal and valid in New Zealand, provided they meet the specific legal requirements. It's a common question we get, and the confusion is understandable. The "online" part refers to the creation process, not the final legal document itself.

To be a valid legal document, your will must comply with the Wills Act 2007. The key requirements are:

It must be in writing. .
It must be signed and dated by you (the will-maker).
It must be signed by two witnesses. These witnesses must be present with you when you sign your will and must see you sign it.

The most critical rule, and a common mistake we observe, relates to the witnesses. A witness (or their spouse or partner) cannot be a beneficiary in the will. If they are, any gift or bequest to them will fail. The will itself remains valid, but they won't receive what you intended to leave them. So, when you use an online service to create your will, you'll still need to have the final document printed and have it properly signed and witnessed in person to make it legally binding.

Online Wills vs. Traditional Methods: A Quick Comparison

Choosing how to create your will depends on your personal circumstances and comfort level. Both online and traditional methods can result in a perfectly valid will, but they offer different experiences.

Convenience and Speed

This is where online wills truly shine. You can create your will from your kitchen table, at any time that suits you. There's no need to take time off work or travel to a lawyer's office. The process is self-paced, allowing you to gather your thoughts and information without pressure and provide initial instructions.

Cost

Affordability is a major driver for people choosing to make a will online. This can reduce the number of in person appointments for some people.

The Process and Lawyer Involvement

The biggest misconception about online wills is that you're completely on your own. This is not the case.

While some basic template services might be, reputable online will providers have built-in safeguards. The traditional process involves a face-to-face meeting to give instructions, followed by a lawyer drafting the document. An online process replaces that initial meeting with a guided online questionnaire.

The best online services, however, don't remove the expert oversight. They combine the efficiency of technology with professional expertise. For example, our service ensures the final document is checked by a lawyer before having you attend our office to discuss and then proceed to signing if appropriate. This hybrid approach gives you the convenience of an online service with the confidence that a legal professional has reviewed your instructions, ensuring your will is robust and legally sound.

How to Create Your Will Online: A Step-by-Step Guide

Ready to get it done? The process is more straightforward than you might imagine. We've broken it down into five simple steps.

Step 1: Gather Your Information

Before you start, it helps to have a clear picture of your estate and your wishes. Take a few minutes to think about:

Your Assets: Make a list of your significant property and assets. This includes your house, bank accounts, investments, KiwiSaver, life insurance policies, vehicles, and any items of special value.
Your Beneficiaries: Who do you wish to leave your assets to? List the full legal names of the people, charities, or organisations.
Your Executor: Who do you trust to be the executor of your estate? This person will be responsible for carrying out your will's instructions. It's wise to name a backup executor as well.
Guardians: If you have minor children, decide who you would want to appoint as their guardian.

Step 2: Use a Guided Online Service

This is where our service comes in. We’ve designed a process that makes creating your will as simple as possible. To get started, you simply answer a series of straightforward questions on our online platform. The system guides you through each section, covering your assets, beneficiaries, executor, and any specific gifts or wishes you have.

Step 3: Lawyer Review and Confirmation

This is a crucial step that provides peace of mind. Once you've completed the online form and submitted your instructions, one of our experienced Hastings-based lawyers personally reviews everything. We check for clarity, consistency, and any potential legal issues. This ensures the document accurately reflects your wishes and meets all the requirements of a valid will. The fee for completing your will is determined by the complexity of your affairs, and we always provide you with an estimate for your approval before we commence any work.

Step 4: Print, Sign, and Witness Your Will

After our review, we'll arrange for an appointment with you to discuss your affairs and if appropriate sign the same. Remember the golden rule: your witnesses cannot be beneficiaries. Choose neighbours, colleagues, or friends who are not named in your will.

Step 5: Store it Safely

Your original, signed will is an important legal document. Store it in a safe place where it won't be damaged or lost. Just as importantly, tell your executor where it is. A will that can't be found is no use to anyone. For our clients you are able to store your will with our office for safe keeping.

Key Roles in Your Will: Executor, Beneficiary, and Guardian

When you make a will, you formally appoint people to three important roles.

The Executor is the person (or people) you appoint to be in charge of your estate after you pass away. They are responsible for obtaining probate if needed (the High Court's approval of the will), paying any debts, and distributing your assets to the beneficiaries according to your instructions. You should appoint someone you trust to be organised and responsible.

A Beneficiary is any person or entity who you leave a gift to in your will. You can make specific gifts (like a piece of jewellery to a friend) or leave a portion of your overall estate (the 'residue') to one or more people.

A Guardian is the person you appoint to have responsibility for the day-to-day care of your minor children. This is arguably the most important decision a parent will make in their will.

When is it appropriate to seek legal advice?

We are big advocates for the accessibility of wills, but we're also committed to giving honest advice. Online wills are ideal for people with straightforward financial and family situations. However, there are times when the complexity of your affairs warrants tailored, face-to-face and thorough legal advice.

In our experience, we strongly recommend seeking direct legal advice from a lawyer if your situation includes:

Complex Family Structures: This includes blended families with children from previous relationships, or if you are in a de facto relationship with complicated relationship property.
Business Ownership: If you own a company or have shares in a business, your will needs to handle this correctly.
Family Trusts: If you have a family trust, your will needs to be drafted with consideration to the trust.
Excluding a Dependent: If you wish to leave someone out of your will who might have a legal claim on your estate (like a spouse or child) under the Family Protection Act 1955.
Overseas Assets: If you own significant property or assets in another country.

For these scenarios, a standard online will may not be sufficient to protect your assets and ensure your wishes are carried out effectively.

_Disclaimer: The information provided in this article is for general informational purposes only and does not constitute legal advice. While we strive to keep the information up to date and correct, we make no representations or warranties of any kind, express or implied, about the completeness, accuracy, or suitability of the information. Any reliance you place on such information is strictly at your own risk. We recommend consulting with a qualified legal professional for advice tailored to your specific circumstances.

Structuring for Success: A Hawke's Bay Business Owner's Legal Playbook

Sun, 14 Sep 2025 21:02:21 GMT

Setting Up and Growing a Business in Hawke's Bay

Key Takeaways

Choosing the right business structure—sole trader, partnership, or company—is a foundational decision that impacts your liability, tax, and ability to grow.
Understanding the Companies Act, including directors' duties and shareholder rights, is non-negotiable for compliant and successful company operation.
For key Hawke's Bay sectors like agribusiness, specialised legal advice on issues like succession planning and consenting is essential for long-term success.
Partnering with an experienced, local legal team is crucial for navigating everything from contracts and compliance to mergers and acquisitions.

Starting and growing a business in Hawke's Bay is an exciting venture. From the vibrant hospitality scene to world-class horticulture and robust trades, the entrepreneurial spirit here is strong. But beneath the surface of every great business idea lies a framework of legal requirements that can feel overwhelming. Getting this framework right from day one is the difference between building on solid rock and building on sand.

Navigating the legal landscape can be complex. In a shifting market, stability and experience matter. This guide is your legal playbook, designed to walk you through the critical decisions you’ll face and show you how a dedicated local partner can help secure your success.

Choosing Your Business Structure: The First Big Decision

How you structure your business is one of the most important decisions you'll make. It affects your personal liability, how you pay tax, and your ability to raise capital or bring on partners. Let's break down the main options in New Zealand.

Sole Trader

This is the simplest structure to set up. You are the business. You control everything, and you keep all the profits. The major downside? There’s no legal separation between you and the business. If the business incurs debt or faces legal action, your personal assets—like your house or car—could be at risk. It’s a great starting point for many, but it’s vital to understand the personal exposure involved.

Partnership

A partnership involves two or more people (or entities) going into business together. Like a sole trader, it’s relatively easy to set up. However, partners are typically jointly liable for business debts. A well-drafted partnership agreement is absolutely essential to outline responsibilities, profit distribution, and what happens if a partner wants to leave. Without one, you’re relying on default legal rules that might not suit your situation at all.

Company

A company is a separate legal entity from its owners (the shareholders). This is its greatest strength. It provides limited liability, meaning your personal assets are generally protected from business debts. While it involves more setup administration and ongoing compliance duties, a company structure is built for growth. It allows you to issue shares, bring in investors, and create a lasting legacy. For most serious, long-term business ventures, this is the recommended path.

Navigating the Companies Act: Your Rulebook for Success

Once you've registered a company, you must operate within the rules set out in the Companies Act 1993. This isn't just paperwork; it’s the blueprint for good governance and protecting your investment. At DK Legal, we have in-depth, firsthand knowledge of the Companies Act, providing comprehensive advice on company and commercial law to ensure our clients' businesses are not only profitable but also soundly operated.

Directors' Duties and Governance

As a director, you have specific legal duties. These include acting in good faith and in the best interests of the company, exercising reasonable care and diligence, and avoiding reckless trading. Failing to meet these obligations can have serious personal consequences. Good governance isn't about creating red tape; it's about making informed, responsible decisions that steer the company towards its goals while managing risk.

Shareholder Rights and Agreements

What happens when shareholders disagree on the company's direction? How do you buy out a shareholder who wants to exit? A shareholder agreement is a private contract between the owners that sets out the rules of engagement. It can cover everything from decision-making and dividend policies to share transfers and dispute resolution. Having one in place from the start is one of the smartest things you can do to prevent costly and damaging disputes down the line.

Legal Essentials for Hawke's Bay Industries

Every business is unique, but local context matters. We have built our expertise by working with a diverse range of local Hawke's Bay businesses. This experience gives us a practical understanding of the specific challenges and opportunities within our community.

A Special Focus on Agribusiness

Hawke's Bay is the fruit bowl of New Zealand, and our agricultural, horticultural, and viticultural sectors are the backbone of our regional economy. These businesses face a unique set of legal challenges. With team members who have rural backgrounds themselves, we understand the landscape intimately. We provide guidance across all aspects of agribusiness, from consenting and water rights to employment contracts and, crucially, succession planning for farming families.

Beyond the Setup: Legal Strategy for Growth

Your legal needs don't stop after you've chosen a structure. As your business grows, your legal strategy must evolve with it.

Contracts and Commercial Agreements

Every business runs on contracts—with employees, suppliers, and customers. Are your terms of trade robust? Are your employment agreements compliant with current law? Watertight commercial agreements minimise misunderstandings and protect your interests when things don't go to plan.

Corporate Compliance

For companies, ongoing compliance is a fact of life. This includes maintaining company records, filing an annual return, and documenting major decisions in board minutes. We can help streamline these processes to ensure you remain compliant, letting you focus on running your business.

Mergers and Acquisitions (M&A)

Growth can also mean buying another business or merging with a competitor. M&A—an industry term for mergers and acquisitions—is a complex process involving intensive due diligence, negotiation, and documentation. Whether you are buying or selling, expert legal guidance is critical to maximising value and minimising risk.

Your Next Step

Whether you’re just starting with a great idea or are looking to take your established enterprise to the next level, having the right legal foundations in place is paramount. You don’t have to navigate the complexities of commercial law alone.

If you're ready to build, grow, or protect your business, we're here to help. Reach out to our team for practical, client-focused advice on all matters of company and commercial law. Let's build a successful future together.

_ Disclaimer: The information contained in this article is for general informational purposes only and does not constitute legal advice. You should not act or refrain from acting based on this information without first seeking professional legal counsel specific to your situation.

Your Hawke's Bay Property Journey: From Due Diligence to Keys in Hand

Sun, 31 Aug 2025 20:56:02 GMT

Your 2025 Guide to Buying Property: A First Home Buyer's Companion

Key Takeaways

2025 presents a unique window of opportunity for first-home buyers due to stabilising prices.
A significant number of properties are available under $850,000, making home ownership in the Hawke’s Bay more accessible.
Engaging a property lawyer before signing any agreement is the most important step to protect your interests during the purchase process.
Conveyancing is the legal process of transferring property ownership, and an expert solicitor makes it stress-free from start to finish.

For many Kiwis, the dream of owning a first home can feel like it's drifting further away. But if you’re looking to buy in Hawke's Bay, 2025 is shaping up to be a year of genuine opportunity. The market is presenting a rare chance for first-home buyers to get a foot on the property ladder.

The First Step: Why You Shouldn't Sign Anything Yet

You’ve spent weeks visiting open homes and you’ve finally found it: the one. The real estate agent hands you a document called a Sale and Purchase Agreement. It’s tempting to sign on the dotted line and lock it in, but this is the single most critical moment to pause and seek legal advice. This agreement is a legally binding contract, and once it's signed, you are committed to its terms.

Before you make any commitment, it's vital to have a property solicitor review the entire document. We can identify potential risks, suggest important amendments (like making the offer conditional on finance or a builder's report), and ensure the terms are fair to you, the buyer. As we explain in our guide, a lawyer is non-negotiable for your NZ property purchase because our job is to protect your interests before you're legally bound.

Navigating the Legal Maze: What is Conveyancing?

Once you have a signed agreement, the legal process known as conveyancing begins. In simple terms, conveyancing is the work required to transfer the legal ownership of a property from the seller to you. It might sound complex, but with the right team, it’s a straightforward and managed process. At DK Legal, one of our biggest focuses is helping every day New Zealanders through the property law process, making it as clear and stress-free as possible.

The conveyancing transaction involves several key stages:

Due Diligence: This is the investigation phase. We’ll check the property’s title for any issues, review the Land Information New Zealand (LINZ) records, and analyse the LIM (Land Information Memorandum) report from the council. This ensures there are no hidden surprises, like boundary disputes or unconsented building work.
Going Unconditional: Once you're satisfied with your due diligence and have your finance formally approved by your lender and confirmation of your Kiwisaver withdrawal approal, we declare the agreement "unconditional." This means the sale is confirmed and both parties are locked in.
Settlement Day: This is the final step where the magic happens. We coordinate with your bank and the seller’s solicitor to transfer the purchase funds. Once the seller confirms they've received the money, the property is officially yours, and you can pick up the keys!

Beyond the City Limits: Buying Rural Property in Hawke's Bay

Hawke's Bay is famous for its stunning landscapes, and many first-home buyers are drawn to lifestyle blocks or rural properties. Buying outside of a residential subdivision involves unique legal considerations. Issues like water rights, access easements, and GST can complicate a transaction. Our team is experienced in this area, providing advice on all aspects of a rural property transaction, ensuring your country dream doesn’t turn into a legal headache.

How Much Do Property Lawyers Cost in NZ?

Costs can vary depending on the nature and complexity of the property transaction.You will need to contact your proposed lawyer to ascertain a fee estimate. On top of this fee are disbursements, which are third-party costs for things like, title registration fees from Land Information New Zealand (LINZ). We believe in transparency and will provide a clear breakdown of all expected costs from the outset and communicate with you throughout the process should your fee be expected to change. Think of it not as a cost, but as an investment in peace of mind and protection for what is likely your largest financial asset.

Your Next Step to Home Ownership in Hawke's Bay

The 2025 property market in Hawke's Bay is offering a fantastic opportunity, but it requires careful navigation. Having an experienced property law team on your side from the very beginning is the best way to ensure a smooth and successful purchase. We can help you understand your obligations, manage the legal process, and get you into your first home with confidence.

If you’re ready to take the next step, our friendly team is here to help. Contact us for a consultation to discuss your plans and learn more about our conveyancing and property law services.

Disclaimer: The information provided in this article is for general informational purposes only and does not constitute legal advice. Property law is complex and individual circumstances vary. We strongly recommend you seek professional legal advice tailored to your specific situation before making any decisions related to buying or selling property.

The Enduring Power of Attorney in NZ: Your Complete Decision-Making Guide

Mon, 18 Aug 2025 21:52:42 GMT

Enduring Power of Attorney for Personal Care and Welfare: Your Guide

Key Takeaways

An Enduring Power of Attorney (EPA) is a legal document where you (the 'donor') appoint someone you trust (the 'attorney') to make decisions on your behalf if you can no longer make them yourself.
There are two types of EPAs in New Zealand: one for Property (managing your money and assets) and one for Personal Care and Welfare (your health and lifestyle decisions).
Your attorney for Personal Care and Welfare can only act when a medical professional has certified that you have lost the mental capacity to make your own decisions.
If you don't have an EPA in place and lose capacity, the Family Court may need to appoint a welfare guardian to make decisions for you, a process which can be stressful and costly for your family.
Setting up an EPA requires your signature to be witnessed by a lawyer, a qualified legal executive, or an authorised officer of a trustee corporation to ensure it is legally valid.

Have you ever paused to think about the future? Not just about retirement plans or travel, but about who would speak for you if you couldn't speak for yourself? It’s a confronting thought, but planning for it can bring incredible peace of mind. An Enduring Power of Attorney, or EPA, is one of the most important legal tools you can have in New Zealand to ensure your wishes are respected, no matter what life throws your way.

This is not about giving up control; it’s about taking it. It’s about choosing someone you trust to make vital decisions about your wellbeing, rather than leaving it to chance or a court to decide.

Let’s walk through what an EPA for Personal Care and Welfare is, why it matters, and how you can set one up to protect your future.

What is an Enduring Power of Attorney (EPA)?

An Enduring Power of Attorney (EPA) is a formal legal document that allows you to give someone you trust the power to make decisions on your behalf. The person granting this power is called the 'donor', and the person you appoint is called your 'attorney'. This doesn't mean they have to be a lawyer; it can be a trusted family member, a close friend, or even a professional like a trustee corporation.

The "enduring" part is key. Unlike a general power of attorney, an EPA is specifically designed to continue—or endure—even if you become mentally incapable of making decisions for yourself.

There are two distinct types of EPAs in NZ, and you can choose to set up one or both:

EPA for Property: This covers your money and assets. You can appoint an attorney to manage your financial affairs, such as paying bills, managing investments, or buying and selling property.
EPA for Personal Care and Welfare: This covers decisions about your health, wellbeing, and lifestyle. This is the person who will advocate for your quality of life.

While both are important, the EPA for Personal Care and Welfare deals with some of the most personal and significant decisions you will ever face. It’s about ensuring the person making those calls truly understands you and your values.

A Deeper Look: The EPA for Personal Care and Welfare

An EPA for Personal Care and Welfare gives your chosen attorney the authority to make a wide range of decisions about your day-to-day life and health, should you be unable to make them. The goal is to promote and protect your welfare and best interests.

What decisions can a Personal Care and Welfare Attorney make?

Your attorney can make decisions about most aspects of your personal life. This includes having the power to decide:

Where you live (e.g., in your own home with support, or in residential care).
Who you live with.
The type of support services you receive (like home help or meal delivery).
Whether you receive a particular type of medical treatment.
Other day-to-day matters, such as what you wear or what you eat.

Essentially, your attorney steps into your shoes to ensure you are safe, comfortable, and cared for in a way that aligns with your known values and wishes.

What can’t an attorney for Personal Care and Welfare do?

The law, specifically the Protection of Personal and Property Rights Act 1988, places important limits on a personal care and welfare attorney’s power to protect the donor. Your attorney cannot :

Make decisions about your marriage or civil union.
Make decisions about the dissolution of your marriage or civil union.
Make decisions about the adoption of your children.
Consent to electro-convulsive treatment (ECT) or any brain surgery.
Refuse consent to standard or life-saving medical treatment for you.

These restrictions ensure that your fundamental rights are protected and that the attorney’s power is focused solely on your welfare.

Who Can I Appoint as My Attorney?

Choosing your attorney is the most critical decision you'll make when setting up an EPA. You need to appoint someone you trust implicitly to act in your best interests. This person should be reliable, understand your values, and be willing and able to take on the responsibility.

To be an attorney for personal care and welfare, the person must be:

An individual (not a trustee corporation like Public Trust).
At least 20 years old.
Not bankrupt.
Mentally capable themselves.

You can only appoint one attorney for personal care and welfare at a time. However, you can (and should) appoint one or more 'successor attorneys'. A successor attorney will step in if your first choice is unable to act for any reason, such as if they pass away, lose capacity themselves, or decide they can no longer handle the role. This creates a vital backup plan.

The Responsibilities of Your Personal Care and Welfare Attorney

Being an attorney is a serious role with legal duties. It’s not just about making decisions; it’s about making them in the right way. Your attorney must always act to promote and protect your welfare and best interests.

To do this, the law says the attorney must:

Consult with you: They must try to help you develop and express your own views and preferences as much as possible, even if your capacity is diminished.
Consult with others: The attorney must consult with any other people named in the EPA, such as your doctor or other family members, to get their input on decisions.
Keep records: They should keep a record of the important decisions they make and why they made them.

Ultimately, your attorney becomes your advocate. They are legally required to put your needs first and make choices that you would have made for yourself if you were able.

When Does the EPA Come into Effect?

This is a common point of concern, but the answer provides significant reassurance. An EPA for Personal Care and Welfare will only come into effect when you are determined to be 'mentally incapable' of making or understanding decisions about your own care. This isn't a casual assessment; it requires a formal evaluation.

For the EPA to be activated, a relevant health practitioner (like your GP or a specialist) must provide a medical certificate stating that you have lost the capacity to make decisions for yourself. Until that happens, you remain in full control. The EPA is simply a safety net, ready and waiting for if—and only if—it is ever needed.

How to Set Up an EPA in NZ

Making an EPA is a formal legal process, and it needs to be done correctly to be valid. You can't just write your wishes down on a piece of paper. The process generally involves these steps:

Decide on your attorney(s): Choose who you want to appoint as your primary attorney and any successor attorneys.
Use the correct forms: You must use the specific forms for an EPA. The Ministry of Justice provides standard forms that you and your legal advisor can use as a starting point.
Get legal advice: Your signature on the EPA form must be witnessed by an authorised person. This can be a lawyer, a qualified legal executive, or an authorised officer of a trustee corporation. Their role is to certify that you understand what you are signing and that you are not being pressured into it.
Sign the documents: You and your attorney(s) will need to sign the documents in front of the appropriate witnesses.

Once signed and witnessed correctly, your EPA is a legally binding document. You should keep the original in a safe place and give a copy to your attorney, your doctor, and any other relevant people.

What Happens if I Don’t Have an EPA?

Without an EPA in place, if you lose the capacity to make your own decisions, your family can’t simply step in. No one has the automatic right to make personal care or health decisions for another adult. Instead, your loved ones would have to apply to the Family Court to have someone appointed to act for you.

The court can appoint a 'welfare guardian' to make decisions on your behalf. While the court will always try to choose someone suitable, this process has several downsides:

It's stressful and time-consuming: The court process can be slow and emotionally draining for your family at an already difficult time.
It can be costly: Legal fees for a court application are significantly higher than the cost of setting up an EPA.
You lose the choice: The court, not you, makes the final decision on who is appointed. While they will consider your family's wishes, the person appointed may not be who you would have chosen yourself.

Setting up an EPA is a proactive step that gives you control, saves your family from unnecessary stress, and ensures the person you trust most is the one making the calls.

Navigating the Process with the Right Legal Partner

While you can find standard forms online, setting up powers of attorney is more than a box-ticking exercise. It's a deeply personal process that involves thinking carefully about your future and your relationships. Getting good legal advice is not just a requirement; it's an opportunity to ensure your EPA is perfectly tailored to your unique circumstances and wishes.

An experienced legal advisor can talk you through the implications, help you choose the right attorney, and ensure you understand all your options.

Frequently Asked Questions

What is the difference between a power of attorney and an enduring power of attorney in NZ?

The key difference is what happens if you lose mental capacity. A 'general' power of attorney is only valid while you are mentally capable. It automatically ends if you can no longer make your own decisions. An 'enduring' power of attorney (EPA) is specifically designed to continue, or 'endure', after you lose capacity, ensuring someone can still act on your behalf when you need it most.

How much does it cost to get a power of attorney in NZ?

The cost to set up an EPA can vary. It depends on the complexity of your situation and the legal professional you work with. It's always best to ask for a quote upfront. While there is a cost involved, it is significantly less than the potential legal fees your family would face if they had to apply to the Family Court for a welfare guardian order.

Disclaimer: The information contained in this article is for general informational purposes only and does not constitute legal advice. The law and its application can be complex and will depend on your individual circumstances. We strongly recommend you seek professional legal advice from a qualified lawyer before making any decisions or taking any action.

Don't Sign Yet! Why a Lawyer is Non-Negotiable for Your NZ Property Purchase

Wed, 13 Aug 2025 00:39:23 GMT

Property Purchase: Why a Lawyer is Essential Before Signing Your Agreement

Key Takeaways

The Agreement for Sale and Purchase of Real Estate is a legally binding document in New Zealand.
A lawyer ensures essential conditions (finance, building inspection, LIM report, title review) are included to protect you.
Legal advice clarifies complex clauses, preventing unforeseen financial or legal issues.
Lawyers can tailor agreements to your unique circumstances.
Skipping legal review can lead to significant financial loss and legal complications.

For most people, buying a property will be one of the most expensive transactions they undertake. It's an exciting time, whether you're a first-home buyer in Hawke's Bay, expanding your business, or investing in rural land. However, amidst the excitement, it's crucial to approach the legal aspects with caution and expert guidance. In New Zealand, the Agreement for Sale and Purchase of Real Estate is the cornerstone of any property transaction, and signing it without legal review can expose you to significant risks.

At DK Legal, we understand the complexities of property law and are committed to providing clear, client-focused advice. Our expertise in property law ensures that your interests are protected throughout the entire process.

The Legally Binding Nature of the Agreement

Many people mistakenly believe that signing an Agreement for Sale and Purchase is merely a formality or an expression of interest. This is a dangerous misconception. Once signed by both parties, this document becomes a legally binding contract. It outlines the terms and conditions of the sale, including the price, settlement date, and any specific conditions that must be met. Breaking such a contract can lead to severe financial penalties and legal disputes.

This binding nature underscores why early legal intervention is not just advisable but essential. A lawyer can review the agreement before you sign, identifying potential pitfalls and ensuring that the terms are fair and protect your interests.

The Importance of Essential Conditions

A standard Agreement for Sale and Purchase might not include all the specific conditions necessary to protect you as a buyer. This is where a lawyer's expertise becomes invaluable. We can advise on and ensure the inclusion of crucial conditions that safeguard your investment:

Finance Condition: Even with pre-approval from a bank, unconditional finance approval for the specific property is still required. This condition makes the agreement conditional on you securing the necessary funds for that particular property, giving you an exit strategy if financing falls through.
Building Inspection Condition: A building inspection can identify significant defects, overdue maintenance, and future maintenance issues. This allows you to negotiate repairs, a price reduction, or even withdraw from the agreement if the inspection reveals serious problems.
LIM Report Condition: A Land Information Memorandum (LIM) provides critical information about the property from the local council, including details on rates, consents, drainage, and potential hazards. Reviewing this report is vital to understand any limitations or issues affecting the property.
Title Review Condition: A lawyer will examine the property's Record of Title to identify any easements, covenants, mortgages, or other encumbrances that might affect your ownership or use of the land.

Understanding the Fine Print

The standard Agreement for Sale and Purchase of Real Estate, while common, contains numerous clauses that can have significant legal and financial implications. These might include provisions regarding chattels, insurance, possession, and default. Without a legal background, interpreting these clauses can be challenging, and misunderstanding them can lead to costly mistakes down the line.

Our lawyers can clarify the jargon, explain the implications of each clause, and highlight any unusual or disadvantageous terms. This ensures you enter the agreement fully informed and confident in your decision.

The Role of the Lawyer in Tailoring the Agreement

Every property purchase is unique, and a standard agreement may not adequately address your specific circumstances. Perhaps you need a longer settlement period, specific access rights, or special conditions related to a shared driveway or boundary. A lawyer can tailor the agreement to reflect your individual needs and protect your specific interests.

This customisation is particularly important for complex transactions, such as the purchase of commercial properties, farms, or properties with unique zoning requirements.

Consequences of Not Seeking Legal Advice

The risks of signing a property purchase agreement without legal review are substantial:

Financial Loss: You could be forced to complete a purchase even if critical issues (e.g., structural defects, unconsented work) are discovered later, leading to unexpected repair costs or a devaluation of the property.
Legal Disputes: Ambiguous clauses or unaddressed issues can lead to costly legal battles with the vendor or other parties involved.
Loss of Deposit: If you cannot fulfill your obligations due to unaddressed conditions, you risk losing your deposit.
Unforeseen Liabilities: You might inherit liabilities such as outstanding rates, unconsented building work, or disputes with neighbours.

At DK Legal, our team is dedicated to providing transparent, cost-effective advice, ensuring you navigate your property purchase with confidence. Don't leave your most significant investment to chance. Contact us today to discuss your property purchase and ensure your agreement protects your future.

Why You Should Regularly Review Your Will

Sun, 03 Aug 2025 23:54:09 GMT

We often see a sense of relief when someone finally signs their Will—“That’s sorted now, thank goodness.” But the truth is, writing your Will isn’t a one-and-done exercise. It’s just the beginning.

At DK Legal , we regularly advise clients across Hawke’s Bay that a Will should be reviewed periodically to ensure it still reflects your circumstances and wishes. Life doesn’t stand still—and neither should your Will.

An outdated or poorly structured Will can lead to confusion, unintended outcomes, and stress for those you leave behind. Below, we outline the most common reasons why reviewing your Will is so important.

Key Life Events That Should Prompt a Will Review

1. Marriage, Civil Union, or Separation

Getting married or entering a civil union automatically revokes your existing Will—unless it was clearly made in anticipation of that marriage.
Separation or divorce doesn’t revoke a Will, but any gifts or appointments involving your ex-spouse may no longer apply.
Simply ending a relationship is not enough. Without a formal separation or divorce, your ex may still have a legal claim.

2. New Children or Dependants

Whether you’ve welcomed a new child by birth or adoption, your Will should be updated to:

Name legal guardians,
Provide for their financial future,
Address any unique needs, especially in blended families or if a child has special care requirements.

3. Death of an Executor, Guardian, or Beneficiary

If someone you’ve named in your Will passes away—whether they’re an executor, guardian, or beneficiary—you’ll need to update your Will to ensure it’s still practical and accurate.

4. Buying or Selling Property

Real estate is a significant asset, and it should be correctly accounted for in your Will. Ownership structure also plays a key role:

Joint ownership : your share usually passes directly to the other owner.
Tenancy in common : your share forms part of your estate and is passed on through your Will.
Changes in property or ownership status are a prompt to revisit your estate plan.

5. Significant Financial Changes

A major change in your financial situation—such as an inheritance, property sale, or business transaction—can affect how you want to distribute your assets. You may wish to:

Update or change beneficiaries,
Allocate funds to charities,
Create a trust or plan for tax efficiency.

6. Other Important Life Changes

While the above are the most common triggers, other events that should prompt a Will review include:

Moving overseas or purchasing foreign property,
Starting a new business or selling an existing one,
Health changes or medical diagnoses,
Changes to family relationships or support needs.

What Happens If You Don’t Have a Will?

If you pass away without a Will (known as dying intestate), your estate will be distributed according to the Administration Act 1969. This can result in:

Family members inheriting who you may not have chosen,
No legal guardians appointed for your children,
Delays, costs, and stress for those left behind.

Having a legally valid Will ensures that your estate is distributed in accordance with your wishes—not default rules.

Time to Revisit Your Will? We Can Help.

If it's been more than a few years since you last reviewed your Will—or if any of the events above apply to you—now is the time to act.

At DK Legal , we make the process simple, personal, and tailored to your unique needs. Whether you're updating an existing Will or putting one in place for the first time, our experienced team is here to provide clear, practical advice every step of the way.

�� Contact DK Legal today to arrange a Will review or get started on a new one. Protect your loved ones and ensure your legacy is carried out the way you intend.

Why Having a Will Matters: Protecting Your Wishes and Your Loved Ones

nicola@dklegal.co.nz (Nicola Crawford) — Tue, 29 Jul 2025 02:29:14 GMT

Protecting Your Wishes and Your Loved Ones

A Will is one of the most important legal documents you can have, yet it’s often overlooked or put in the “later” pile. At DK Legal , we help individuals and families take control of their future through well-drafted, legally sound Wills. If you haven’t made a Will, and you have an asset worth more than $15,000 (think Kiwisaver, savings, house, vehicle) and/or children —or if your existing Will is out of date—now is the time to act. Here’s what you need to know.

What Is a Will?

A Will is a legal document that sets out how you want your property, assets, and personal items to be distributed after your death. It allows you to:

Appoint executors (the people who manage your estate),
Name guardians for your children,
Make specific gifts to loved ones or charities,
Outline your funeral wishes,
Ensure that your estate is handled the way you intend.

Without a valid Will, these decisions may be made by default legal rules—not necessarily in the way you would have chosen.

Why Having a Will Is So Important

1. Control Over Your Estate
A Will gives you the power to decide who receives what. Without one, your assets will be distributed according to the rules of intestacy, which may not reflect your wishes.

2. Reduce Stress for Your Family
Losing a loved one is hard enough. A Will helps minimise confusion, delays, and potential disputes during an already emotional time.

3. Appoint Guardians for Your Children
If you have minor children, your Will is the place to name the people you trust to care for them should anything happen to you.

4. Avoid Legal Complications
Dying without a Will can lead to costly legal processes, especially if there are disagreements among family members or if your situation is complex.

5. Provide for Special Circumstances
Whether it's a blended family, a business, or specific personal wishes, a properly drafted Will ensures that your unique circumstances are accounted for.

When Should You Update Your Will?

Once you have a Will, at DK Legal Limited, we recommend that your Will is reviewed and updated when major life events occur, such as:

Marriage or separation,
The birth of a child or grandchild,
Buying or selling a home,
Starting or selling a business,
The death of a named executor or beneficiary.

Even if none of these events have occurred, it’s still a good idea to review your Will every few years.

Take Control of Your Legacy—We’re Here to Help

At DK Legal , we make the process of creating or updating your Will straightforward and stress-free. We’ll take the time to understand your circumstances, explain your options clearly, and ensure your Will is legally valid and tailored to your needs.

Don’t leave your family with uncertainty or unnecessary legal hurdles. Whether you're starting from scratch or updating an old Will, our experienced team is ready to help.

�� Contact DK Legal today to book a confidential consultation and take the first step in protecting your legacy and your loved ones.

What is an Enduring Power of Attorney? Do I need one?

Tue, 28 Apr 2020 12:00:00 GMT

Life is somewhat unpredictable, and you never really know what to expect. You may have a serious accident or suffer a serious illness, or have to travel overseas at short notice or just want someone else to look after your affairs as you get older. An Enduring Power of Attorney (or EPA) can ensure that someone you trust will be able to look after your affairs for you.

What is an EPA?
Unlike a Will, an EPA operates whilst you are alive. It is a legal document appointing someone to act as your Attorney on your behalf if you cannot or do not wish to do so.
There are two types of EPAs. One for Property and the other for Personal Care and Welfare.
An EPA for Property allows you to appoint someone to manage your financial affairs. Where as a Personal Care and Welfare EPA allows you to appoint someone to make decisions about your personal health and well-being in the event that you are unable to make the decisions for yourself.
Setting up an EPA will give you peace of mind that your assets and personal welfare will be managed by someone you trust if you become unable to do so. Everyone over the age of 18 should have an EPA in place.

How does an EPA work?
After appointing someone as your Attorney, they are able to make important decisions on your behalf including signing documents.
If you do not have an EPA in place and an important decision must be made or likewise documents signed, a member of your family or a friend must apply to the Family Court under the Protection of Personal Property Rights Act 1988 to be able to legally manage your affairs. This is an incredibly costly and timely process which may result in the Court appointing someone that you would not normally choose.
This is why it is paramount that you have an Attorney put in place prior to needing it. This will allow you and your loved ones surety.

Many people often prepare or review their Power of Attorneys when they are completing or reviewing their Wills.

Get in contact with us today to discuss appointing Powers of Attorney for yourself or your loved ones. Alternatively, you can use our online Enduring Power of Attorney form and complete it from the comfort of your own home.

Do you have KiwiSaver? Then you’ll need a Will

Tue, 21 Apr 2020 12:00:00 GMT

Prior to KiwiSaver, it wasn’t exactly a significant issue if a person who didn’t own a home died without a Will because there often weren’t any other significant assets. Therefore, obtaining a Grant of Administration may not always be necessary. This is because many young people often did not have sufficient assets to warrant a formal Grant of Administration.

Following an individual’s death, a Grant of Administration is required when they have an asset worth over $15,000 in their own individual name. This could be a bank account, life insurance policy, shares, property, or other forms of investments. If the individual has a Will, this will take form of a Grant of Probate, however if you do not have a Will, Letters of Administration will be required. These both are issued through the High Court.

It’s important to note that any assets held jointly with another person including bank accounts, life insurance policies, or shares do not form part of a person’s Estate as they are transferred to the joint owner upon a person’s death.

Accounts such as KiwiSaver however; are always held in a person’s individual name, meaning that if you have more than $15,000 in your KiwiSaver fund, it will be necessary to apply for Probate should you have a Will, or Letters of Administration if you don’t in order for the KiwiSaver investment fund to be accessed.
If you have a Will, you would have appointed an executor or executors that you want to be in charge of your Estate. The executor(s) will apply for a Grant of Probate. Following the granting of this, they will be able to apply to your KiwiSaver provider to have the funds released.

After this, your executor(s) will then distribute your funds in your Estate according to the beneficiaries listed in your Will. In most cases, this is a fairly straightforward process. However, if you do not have a Will, the Administration Act 1969 sets out the priority of who can apply to be the Administrator who will be in charge of your Estate. The administrator(s) will then apply for a grant of Letters of Administration of intestacy. Once this has been granted, then they will then be able to apply to have the provider of your KiwiSaver release the funds.

Following this, the administrator will then distribute the funds in your Estate in accordance with the rules set out in the Administration Act, and you will not have a choice as to who are the beneficiaries of your Estate. The legislation decides this for you.

In some cases, the person who will benefit under the Administration Act is the same person who you may have appointed as beneficiaries under your Will. But in many cases, they may not be the same.

It is paramount that to save a lot of time, cost, and stress for those that you leave behind, that you have a Will in place. Applying for Letters of Administration is a much more complicated, time-consuming, and expensive process than applying for Probate. Be proactive – do your loved ones a favour and be prepared.

Get in contact with us today to discuss your Will.

My Contracting Out Agreement was done a few years ago - it'll still be valid, right

Tue, 14 Apr 2020 12:00:00 GMT

Contracting Out Agreements, which are more commonly known as prenups or prenuptial agreements, are becoming increasingly popular given the nature of relationships today. A correctly executed Contracting Out Agreement can be legally binding, however holes can often start to appear if the agreement is not reviewed regularly. Contracting Out Agreements are live documents and a “set it and forget it” approach is not always going to work.

As most people are aware, the Property Relationships Act 1976 dictates that all assets and liabilities of a relationship are to be divided 50/50 when a couple separates. The same Act does however provide that couples are able to contract out of this equal sharing rule.

Blended families are becoming more and more common and it’s no longer the norm for a couple to be together forever. With this in mind; sharing all your assets with a few different people can become concerning, including that house that you used to own solely.

A Contracting Out Agreement defines how assets and liabilities will be allocated in the event that the couple separates, or one dies. By signing a contracting out agreement, a couple is able to come to any agreement that they like rather than being stuck with the 50/50 sharing as prescribed by law.

The common misconception here is that that’s all that needs to be done. However, the underlying feature of the Act even when you are contracting out is that the terms reached and agreed must be fair in the particular circumstances of the parties. This is often where we will step in. We can provide independent legal advice for one of the parties – for you – so that you can be assured that the effects and implications of the agreement you are signing are exactly what you thought.

Whilst the agreement may have been fair at the time of signing, it is important that the agreement remains fair throughout its life. As previously mentioned, the document is a live document and needs to be reviewed regularly. This means that it is similar to a Will in that every few years, or upon a significant change of circumstances (such as having a child, a serious illness, becoming unemployed, or getting married), this agreement should be reviewed to ensure it is still enforceable.

If the Contracting Out Agreement is not regularly reviewed it becomes vulnerable to challenges – and this is where the holes start to appear. The important note is that as a relationship continues to grow and change, the agreement which governs the property of that relationship must grow and change with the circumstances. Get in contact with us today to review your agreement, or to discuss creating an agreement for you and your partner.

Electronic Signatures – Can I use them?

Tue, 07 Apr 2020 12:00:00 GMT

Whilst some businesses have been signing electronically for some time, the current environment has a number of businesses seeking a little bit of clarity as to what can and cannot be signed electronically.

The Contract and Commercial Law Act 2017, more specifically Part 4, which was previously know as the Electronic Transactions Act 2002, clarifies the legal requirements regarding electronic signatures.

Subject to a few exceptions, the general position under the Contact and Commercial Law Act is that electronic signatures can be used and will be considered as valid as real signatures as long as certain requirements are met and all parties consent. This means that in practice you can sign documents such as Agreements for Sale and Purchase, commercial agreements, leasing documentation, Director’s Resolutions, Shareholder Resolutions, and Trustee Resolutions electronically.

Schedule 5 of the Contact and Commercial Law Act; however, lists examples where electronic signatures cannot be used. This includes but is not limited to: Wills, Codicils and other testamentary instruments, affidavits, statutory declarations and other documents that are given on oath or affirmation, Powers of Attorney and Enduring Powers of Attorney, and other information that is required to be given in writing in person unless the receiving party consents to an electronic signature.

We note that Deeds can be signed electronically, but there are important points to consider in terms of formalities. For New Zealand companies a Deed must normally be signed by two directors, and if there is only one director then that director must sign in the presence of a witness.

In the case of two directors, each director can sign in counterparts using electronic signature. However, if you are a sole director and you are required to sign in the presence of the witness, the witness must observe the director’s signature first before signing themselves. The best practice for this is that the witness be physically present when observing the director’s electronic signature. The usual requirements in respect of witnesses still apply with electronic signatures including the witness not being a party to the Deed, and being adequately identified by stating their name, address, and occupation. It’s important to note that an electronically signed document is also considered an original. If a document has been signed electronically, it will constitute an original document on the provision that the electronic signing method reliably assures the integrity of the document. This means that steps have been taken to ensure the document cannot be tampered with or changed after signing other than by using the same amendment rules that apply to web bank documents.

If you have any queries about what can and can’t be signed electronically through this period of trying to continue operating your business, get in contact with us today.

Pre-Settlement Inspections – what are you looking for?

Tue, 10 Mar 2020 03:50:00 GMT

Purchasers have the right to inspect the house they are purchasing prior to the settlement date. This is one of the steps in buying a house that tends to be more contentious. The purpose of this inspection is to ensure that the house is as it was when the agreement was confirmed as being unconditional.
There are several issues that arise following the vendors vacating a property including: pieces of furniture hiding stained carpets or damaged walls, appliances not working, or vendors removing items that the purchaser has assumed were to be left behind.

It’s important to know what to look for, what is expected, and what happens following the inspection if there are issues.

A common bugbear for purchasers is the cleanliness of the home following settlement. Whilst it is acknowledged that the vendor does have certain obligations, there is no general obligation on the vendors that the house is to be delivered in a clean and tidy state despite that it might be what a proper and decent person would usually do. In an ideal world, the purchaser will complete this inspection a couple of days prior to settlement. It is at this time where they will check that the property has not been damaged by the vendor or tenants moving, as well as various appliances and chattels all being in reasonable working order should they form part of the agreement. This includes items such as: heat pumps, ovens, garage door openers, and anything else included in the agreement for sale and purchase. It is at this time that should any defect or issue be identified that the purchaser is able to request that this be remedied.
Should a defect or issue be found, there is often two ways that this can be dealt with, either requiring the vendor to fix the issue, whether it be a broken window or a heat pump not blowing hot air, or reduce the price in accordance with any defect.

It is important that everybody understands that if a defect or issue is noted at the time of signing the agreement, that conditions to rectify the defect or issue are included in the agreement for sale and purchase. This includes ensuring the property is clean, tidy, and clear of all rubbish, or the oven being cleaned prior to settlement. We have prepared a pre-settlement checklist for when you carry out your pre-settlement inspection. These are general things to check.

1. Vacant Possession - unless the property is being sold tenanted, the vendor is required to give the purchaser vacant possession. This means ensuring that the vendors have actually vacated the property.
2. General condition of the property – Considering the condition of the property when you agreed to purchase it, is the property in the same general condition?
3. Chattels present and working – ensure floor coverings, window coverings, any stove, oven, or any other chattel listed as being part of the purchase is checked as present and working. It should be noted that the chattels are not required to be clean, however they are required to be in working order.
4. Any additional repairs, maintenance, or other agreed terms – should the agreement contain any other further terms for maintenance, repairs, or cleaning be completed prior to settlement, ensure that these works have been completed.
5. No new damage – during the moving process, it’s not uncommon for damage to be caused. You should also check that no new holes in walls or doors have appeared.

Should any issues or problems be discovered during your pre-settlement inspection, it is absolutely paramount that you contact your lawyer to discuss this and obtain the right advice on how to proceed.

Get in contact with us today to discuss purchasing your next home.

Purchasing a property can be a daunting but exciting process. What conditions should you include in your agreement?

Thu, 20 Feb 2020 00:10:41 GMT

For most of us, buying a property will be one of the most expensive transactions undertaken. Therefore, the Sale and Purchase Agreement is one of the most important documents that you will sign. It is important that you do not sign the Agreement before obtaining legal advice; otherwise, you may find you have signed a legally binding Agreement without the correct legal advice.
By adding conditions to your offer, you will still enter into a legally binding agreement, but the purchase will not be confirmed until you have satisfied all the conditions.
A list of the most common conditions which are recommended for residential property purchases are:

Finance condition:
Even if you have a pre-approval from your bank, you still need to get an unconditional finance approval for the particular property you are purchasing. You may find the bank are not prepared to lend the amount of money that you require because of issues with the title, the location or value of the property.
Land Information Memorandum (LIM):
The LIM contains all the information Council hold on the property, such as the property valuation, information regarding building permits and consents, code compliance certificates, any resource consents issued in the immediate adjacent area, special land features including flooding, erosion, falling debris, slippages, and other land features.
Building Inspection Report
A building inspection attempts to identify any significant defects, overdue maintenance, future maintenance issues, gradual deterioration and inferior building work. The inspector will also carry out an moisture test which will identify any structural problems or a leaky building. Depending on what a building inspection finds, you may be able to use a report to help you negotiate with the vendor over price or repairs. Even if a report only finds minor issues, you can still use it as a road map for future maintenance.
If you are purchasing a house that is being built, or a subdivision that is not yet completed, a Sunset Clause may be appropriate. This would give you the option to get out of the Agreement should the work not be completed and settlement not have occurred within a specified time frame. If you are an overseas person wishing to purchase sensitive land in New Zealand, then an OIA consent condition would be required
Other common conditions that can be included in the Agreement is Registered Valuation, Solicitors Approval, the Sale of an existing property and Due Diligence.

It is essential that conditions are appropriately worded so that their meaning is clear and they are not disputed at a later date. Do not rely on verbal agreements with the vendor or agent. Please ensure all agreed terms are contained in writings in the Agreement.

Auction checklist: Checklist before you bid!

Sun, 16 Feb 2020 11:00:00 GMT

Selling your property at auction is popular with vendors, but the auction process can be daunting and overwhelming for purchasers. Remember, it is your responsibility as the purchaser to make sure you have done all the checks, and you will need to complete your due diligence before the auction. So, what do you need to check?

Title and Auction Agreement:
It is essential to request the Real Estate Agent to provide you with a copy of the auction agreement. You should check to ensure the chattels list is correct. Your lawyer should review the agreement to ensure the standard terms and conditions have not been amended or altered or that the vendor has not added any disclaimers of the warranties in the agreement.
If you are the successful bidder, you will be deemed to have accepted the Record of Title. It is important to know what type of property you are buying, whether it is fee simple, cross lease, unit title or leasehold or whether there are any interests registered on the land.
It is essential to go through the title of the property and auction agreement with your lawyer to be sure you fully understand what you are purchasing.

LIM Report
The LIM report shows all the information the council has on file for the property, including if Council has issued Code of Compliance certificates for the building, or if there are any outstanding requisitions.

Property file
If you suspect any building work has been done without the required consents, it is highly recommended that you go to council and do a property records inspection. This will enable you to view the floor plans and match the floor plans with the building on site.

Builder’s Report
Would you buy a car without a test drive? Although expensive, a builder’s report should identify significant defects, future or urgent maintenance issues and problems caused by gradual deterioration and lack of maintenance, such as rotting weatherboards or peeling paint. The building report needs to include a moisture test, which will identify structural issues or a leaky home.

Finance
Before you bid on auction, obtain unconditional approval from the bank in writing. Pre-approval is only half the approval process. It is vital that you have the bank’s approval for the house you are bidding on.
Every property and every purchase are different, and your circumstances are unique, so please contact us to assist you with the process before you bid.

Operating a business? How do your terms of trade look?

Sun, 09 Feb 2020 11:00:00 GMT

Companies that provide goods or services on standard terms (including credit terms) should be regularly having a legal health check of their terms and their practices for ensuring the terms they are using accurately reflect their business practices, meet all of their requirements and cover off their key risks – as well as ensuring they are appropriately brought to the attention of customers or clients so that they are valid, enforceable or binding.
Terms of trade (which may be called "terms of engagement" or "standard terms of contract") will often contain virtually all of your key legal rights and remedies in respect of the customers that you supply and if drafted appropriately, can greatly assist in managing disputes in a cost-effective and beneficial way, allow ready enforcement of your legal rights, and ensure that you are complying with the law in respect of the information you obtain about your customers and the way that you conduct business.
Importantly, your terms of trade will contain and protect a supplier's main right – the right to be paid for the goods and/or services that the supplier provides – and often how that payment will be calculated.
In a legal sense, terms of trade are absolutely essential to your business.

Key terms to include
Terms of trade will differ depending on whether your business supplies products or services.
There are some keys terms that are relevant in both scenarios though:
Price – how is the price for the products or services calculated? For example, quote, price list, or hourly rate.

Payment – when is payment due? If you need to pursue a customer for failing to pay it is also important your terms include the right to charge default interest and require the customer to pay your debt recovery costs.
Liability – your liability exposure will vary depending on whether your customers are consumers or businesses. If you sell products or services to consumers, then you will need to comply with the Consumer Guarantees Act 1993. If you are selling to businesses instead, it is common to limit and exclude your liability as much as possible. For example, a business will often exclude their liability for losses suffered by a customer resulting from defective products or services that the business couldn’t reasonably foresee.
Termination – if your terms of trade are to apply to multiple future transactions between you and the customer, you should include termination rights allowing you or the customer to end the relationship. You may wish to terminate on giving a period of notice, or where a party is not complying with their obligations.
Guarantee – if you are supplying products or services to a company and you have concerns about payment, you could consider requiring the directors to guarantee the company’s obligations. To be enforceable though, the guarantee must be signed by the guarantors.

Terms need to be agreed
Once you have terms of trade, they also need to be brought to the attention of the other party and you need to be sure you have clear evidence that they have agreed to them. If you cannot evidence this agreement, your terms may not form part of your contract and you may not be able to enforce them. Arguments over whether terms have been agreed or not can be costly. We assist to ensure that your business practices clearly evidence that your customers have agreed with your terms. Depending on the business relationship and context, this can be as simple as:

having a customer sign an account or credit application form including the terms;
sending the terms by email and getting confirmation they are accepted and retaining those emails; or
having a person tick a tick box on your website, confirming that they have read and agreed to your terms before providing them a gateway to complete further business.

Changes to the Law
There are lots of statutes that impact on your terms of trade and your business – as well as impact on certain rights you may wish to enforce.
Even if you have good terms of trade, you should be having regular updates to make sure that a recent legal change has not had an undesired impact on your terms. You can also take advantage of changes to legislation that might benefit you.

Failure to have Terms of Trade can be costly!
Terms of Trade can have good enforcement provisions that assist you to get paid quickly and maximise your cash flow. If you cannot enforce the terms you want with customers, you can lose a lot of money, both in arguments with customers or through being unable to enforce the terms you need.
The only way to avoid this is to have well drafted, up-to-date terms of trade that comply with the law, reflect your business practices and requirements and manage your risks – and are able to be demonstrated as being agreed by the customer and therefore binding. Being in a position to use standardised terms of trade means that you do not need to enter different contracts with each customer, so there is already a cost saving that one size will fit all. We recommend that cost saving is used by making sure you get appropriate legal support to ensure your standard terms are the best that they can be.
We think the points we have made are pretty conclusive that ensuring that you have good terms of trade is something that warrants legal expenditure; it is a cost that will more than pay for itself in terms of good business and risk management. We are happy to help.

It's estimated that 50% of people do not have wills - are you one of the 50%?

Mon, 03 Feb 2020 00:17:46 GMT

Mary: I’ll be honest, getting a Will sorted has never once crossed my mind. It’s not like I’ve got any assets, and I’m only 29! What would I do, leave my brother and sister the $300 in my savings account? Although what about my KiwiSaver?
Roger: It was only when I started thinking about all the practical steps which need to be taken did it make me see the non-financial value of a Will. Like whether I wanted to be cremated or buried and where would I want my ashes scattered? I had never discussed any of this with my family.
Kathy: I definitely want to make sure my family isn’t over-spending if they ever do have to say goodbye, so I should probably at least let them know the basics of what I want to happen.
Janet: I don’t want to sting my family with a $10,000 burial cost. I want to be cremated! I never told them that. Maybe I need a life insurance as well. It’s all a bit grim isn’t it.

Most of us cannot say when or how we’ll kick the bucket, but what we do know for sure in life is that it will end at some point, hopefully later rather than sooner. Despite this morbid certainty, an estimated 50% of Kiwis haven’t got a Will. Do you?
Without a Will, section 77 of the Administration Act determines who gets what and how much – that can create a whole lot of trouble for those we leave behind.

It’s not just about the assets you have but also whether you leave clear legally enforceable instructions or not.
If you think about how you’d like to be buried and who should receive items of high sentimental value (even if they’re financially worthless) it will make the hard work of dealing with your death a little easier for your family. It is not a topic widely talked about so writing it down ensures everyone knows your wishes and does not have to second guess decisions they make.
It is an individual choice whether you have a Will, but dying without a Will can heighten tensions between family members, especially after an unexpected death.

Most people would be surprised by the amount of times families have an almighty argument after a tragedy because they can’t agree what the intention was.
We are sure you would want people to come together in a moment of grief and do the right thing but sometimes the lack of Will is the last straw and just fuels the emotional turmoil at the time.

Preparing and signing a Will is a pretty simple investment for most people and removes a whole lot of drama at time of death.
So if you have just returned from overseas travel, about to embark on an OE, or living a settled life in Hawke’s Bay, despite being in your 20s or your 70s, maybe it’s time to think about planning ahead and taking the burden away for those left behind.

Save your loved ones the hassle, call us today to discuss your Will. Don't feel comfortable talking about it? Use our online Will form instead to provide us with your instructions.

New tax incentives to help small businesses and start-ups grow

Tue, 24 Sep 2019 23:21:03 GMT

On the back of the Tax Working Group the government has unveiled a new tax incentive scheme aimed at small businesses and start-ups which looks to remove two barriers to expansion faced by businesses.
The scheme looks to reduce the costs associated with looking into a potential business investment – such as buying a new asset or changing the way a company does business. Currently these costs are not tax deductible. The changes will allow businesses to deduct 'feasibility expenditure' from their tax bills, including for projects that don't end up going ahead.
Under the current rules, there is no allowance for such a deduction which, has resulted in less innovation in the marketplace, particularly in the infrastructure sector.
The proposed reform would ensure that a business would be able to claim a tax deduction for the costs involved in a project and therefore the cost of the investment is less, which makes the project more viable and encourages testing of innovation and ways to improve productivity.
The government is proposing that qualifying expenditure totalling less than $10,000 would be deductible immediately. Deductions could be spread over five years.
The new tax plan will be introduced into Parliament early next year, meaning the change can kick in from the start of the next tax year.
The second proposal would make it easier for start-ups to attract investment and get off the ground by removing "loss continuity rules" – whether or not businesses' losses from a previous year are able to be applied to the current year.
Currently a firm that suffered a loss one year could use that loss to reduce its taxable income in the future, but the rules did not work well for start-ups who were trying to attract new investment.
As start-ups attracted new investment, they often breached the threshold under which they could continue to use these losses, and this has been a barrier to businesses taking risks.
The changes are aimed at removing barriers that are currently holding back economic growth and are part of the government’s Economic Plan to build on initiatives already announced which include a $1 billion investment for R&D tax incentives, record transport infrastructure investment, boosts to apprenticeships and trades training, and changes to immigration settings to make it easier for businesses to access the workers they need.
The details around how the two proposed changes will work would determine their effectiveness - business and tax experts will be consulted on the proposals later this year.

Changes to rental property legislation kick in

Mon, 26 Aug 2019 23:23:37 GMT

The Residential Tenancies Amendment Act 2019 takes effect from today and it brings with it a number of changes for tenants and landlords. We have summarised the main effects below.
Liability for damage
One of the most significant changes is in respect of who pays for accidental damage to a rental property. The law change makes tenants liable for an amount equal to four weeks' rent, or the landlord's insurance excess, whichever is lower, in any incident of damage. Previously the Court had taken the position that tenants should be able to rely on their landlords' insurance - effectively meaning that investors had to carry the cost of any accidental damage.
The result will depend on the view of the insurers, as some insurers regard each instance of damage as a separate event and charge another excess. Stains on the carpet of four rooms, for example, could generate four excess payments. The Tenancy Tribunal will be used to determine how many incidents took place.
Insurance companies will not be able to pursue tenants on the landlord's behalf unless the damage was intentional or due to an unlawful act.
Insurance
Landlords and property managers now have to give their new tenants (and any other tenants who ask) their insurance details. This is so tenants can understand what they would need to pay in the event of damage.
If they do not provide their insurance details, they can be fined up to $500.
Garages and Sleepouts
Currently, the Residential Tenancies Act does generally not provide protection to people who rent out a garage or sleepout.
The law change amends the definition of a ‘residential premises’ so that regardless of whether or not the property is legally allowed to be lived in, tenants can still go to the Tenancy Tribunal and Tenancy Services can take enforcement action.
Contamination
The law around contamination allows for new regulations to be developed to prescribe an acceptable level for methamphetamine contamination and processes for testing and decontamination.
This development will allow landlords to test for meth as long as they give the tenants 48 hours' notice that they are entering the property. They will have to tell the tenant what they are testing for and share the results.
With the introduction of this Act and the other recent changes to landlords’ obligations, it is essential that landlords get the correct legal advice as failure to comply can be costly. Contact our office today to ensure you are meeting your obligations as a landlord.

Leasing the family farm - what you need to know

Wed, 24 Jul 2019 23:25:36 GMT

Farm owners looking to retire or work less now see leasing as a viable alternative to sale. Leasing provides a fixed income and protection against the inevitable fluctuations in return in the farming sector. The farm is retained, and the farm owner reaps the benefit of the capital gain during the term of the lease. Likewise, younger farmers or those needing run off land see leasing as an opportunity to build an asset base without the capital needs of ownership. It allows the tenant to increase productivity over a fixed term with flexibility as to size and location.

For the land owner, leasing is a major decision and requires clear boundaries to be set. The decision to give another possession of your farm and allowing them to farm it their way is not an easy one to make. It necessitates a loss of possession and control which is often tough to come to terms with. This is especially so if the land owner is to continue living on the farm as the tenant’s use and care of the farm will be within easy oversight
The relationship between the land owner and tenant is governed by the lease. When it comes to documentation it is critical that all issues are out in the open and discussed. The lease is a binding document, so it is very important to get it right the first time. Once the lease is signed, there is no going back.

There is no such thing as a "standard" farm lease. Although some specifics such as term, area, and rental must be addressed, other terms are optional, and need be agreed between the parties.
The lease agreement can cover:

Permitted use - the land owner may want to restrict the use of the land to certain farming activities. Allowing the land to be used for "pastoral farming" allows for very wide use. For example, does this allow the tenant to keep pigs on the property, or use the property for dairy grazing or bull fattening? If the use of the property will place greater demands on the fertility, pasture or state of the property at the expiry date, then this needs to be considered at the outset.
Insurance - in addition to the general position that the tenant pays the land owner’s cost of insurance relating to the property, the land owner needs to ensure that appropriate public liability insurance and cover under the Forest and Rural Fires Act is obtained relative to the permitted use.
Fertiliser/spraying requirements or obligations - what are the land owner’s requirements? The fertiliser requirements should be set relative to the tenant’s use of the property. For example, the fertiliser requirements will be greater where the property is used purely for a run-off block.
Repairs and maintenance- this can be a difficult issue. The distinction between what is a repair and what is a replacement (a capital item) is important. For longer term leases, capital expenditure may be agreed as part of the leasing proposal. If so, that agreement should state who pays for the capital item and what effect that capital expenditure will have on the rent.
Ownership of improvements - if the tenant is making capital improvements to the farm, for example, constructing new yards or in the case of an orchard planting trees, who owns those improvements and is the tenant compensated at the end of the lease?
Rent review - when and how are rent reviews to take place? The lease needs a clear mechanism to establish the new rental in order to remove any argument as to whether the correct basis has been used for establishing the new rental. More often than not this is an area where conflict develops, which can often escalate to involve matters outside the terms of the rent review. A clear rent review mechanism is a means of removing the possibility of conflict and maintaining a good relationship between land owner and tenant.
Resource consents - Where the tenant is to have the benefit and use of the land owner’s consent/s then the responsibility and liability in relating to adherence to the terms of the consent/s needs to be considered. If the terms of the consent/s are breached, who is responsible for the resulting claims or losses incurred?
Other issues - the land owner needs to fully consider their future use of the property before possession is given i.e. does the land owner want to retain certain access rights for hunting, duck shooting, storage etc. If the lease contains a right for the tenant to purchase the property during the term or at expiry, has the land owner considered whether they wish to subdivide the homestead from the farm before sale? Careful consideration of all issues as they may affect present and future use of the property need to be addressed and documented.

Leasing your farm has some major benefits but to avoid the pitfalls you should think carefully through the arrangements and ensure they are documented properly.

Some property purchases require consent from the overseas investment office, does yours?

Thu, 11 Jul 2019 23:27:35 GMT

Since October 2018, the Overseas Investment Office (OIO) placed greater restrictions on who can buy property in New Zealand. This article relates only to residential properties and does not include sensitive land or any other investments purchases. Although almost all overseas people are now unable to buy homes in New Zealand (regardless of whether they already own property here. There are a few exceptions where overseas people can request consent from the OIO.

You don’t need consent if:

You are a New Zealand, Australian or Singaporean citizen; or
You have a New Zealand, Australian or Singaporean Permanent Resident Visa and live in New Zealand; or
You have a New Zealand Resident Visa and live in New Zealand.

To “live in New Zealand” means you must have been here for at least 12 months and you must have spent at least 183 days of the past 12 months in New Zealand.

If you meet the above criteria, you are required to sign a Residential Land Statement declaring your eligibility under the new OIO requirements.

You cannot buy a home to live in if:

You have a Temporary Visa (e.g. visitor, student, working holiday or work visa); or
You are any other type of overseas person.

If you are in this category, you will not get consent from the OIO.

You must apply for consent from the OIO if:

You have a New Zealand Permanent Resident Visa or Resident Visa and do not live in New Zealand; or
You have a New Zealand Permanent Resident Visa or Resident Visa and have lived in New Zealand for less than 12 months or have not been in New Zealand for at least 183 days in the previous 12 months.
You have an Australian or Singaporean Permanent Resident Visa and do not live in New Zealand.

You can apply for a consent once you have found a home to buy, or you can get pre-approval if you have not yet chosen a property to buy. OIO advised that applications can take up to 10 working days to process. We suggest you allow for a longer time-frame and will need to consider this when making an offer on a property.

To successfully obtain consent, you must declare that you are committed to living in New Zealand. If you stop living in New Zealand, you might need to sell the property.

There are some exemptions to the consent requirements, including the spouse or partner exemption. For example, if you are a couple who want to buy a family home to live in, and one of you is a New Zealand citizen, and the other is not, then the spouse who is not a citizen is exempt from requiring consent.
If you have any issues or questions in relation to anything addressed in this article, please feel free to contact us.

Employment law in 2019 - what can we expect

Sat, 13 Apr 2019 23:33:10 GMT

The Employment Relations Amendment Act was finally passed in December signalling the start of employment law changes by the Labour government. With these legislative amendments we will see changes throughout the employment sector during this next year. We can also expect changes in the coming year to supporting legislation to align with the amendments made to this act.

Adios to Trial Periods (effective 6 May, 2019) – Trial Periods will no longer be able to be included in the terms of employment for businesses with 20 or more employees. This could potentially have an effect on employment rates and see the reintroduction of Probationary Periods.

Pay Equity – The Pay Equity Bill was introduced in September 2018 aiming to eliminate gender-based discrimination in female dominated roles as well as improving the process of both raising and progressing claims. While the select committee is due to report on the Bill in April this year, several public sector roles such as teacher aides, social workers and mental health workers were able to reach settlements in 2018. Settlements are expected to continue through 2019 for the public sector.

Changes to Holiday Pay – In May 2018, the Holiday Act task force was formed with the purpose of reviewing the current legislation due to significant non-compliance of the Holiday Act 2003. Legislative change won’t happen in the coming year, but it is likely the report will drive reform in this area.

Domestic Violence in Employment – Those affected by domestic violence will be entitled to up to 10 days paid leave from 1 April 2019. This leave can be taken in a similar way to that of current sick and bereavement leave. That is, employees will be able to take this leave as and when required. In extension to this, employees can also request short term alterations to their working arrangements such as altered work hours, change of location, and/or change of duties. This appears to signal the start of changes with regards to the way employers deal with non-work-related issues and their impact on employees’ well being.

Me Too Movement – This movement has firmly landed in New Zealand businesses with the legal profession a prime example. Several independent task forces have been challenged with reviewing bullying and harassment in the workplace. Reporting of unacceptable behaviour is far more widely supported nowadays and expectations in the work place are starting to change.

Statutory Redundancy Compensation – Within the first 12 months of Labour being in government, they signaled the beginning of consultation to improve minimum redundancy protection. A ministerial advisory group in 2008 recommended that compensation of at least 4 weeks pay for the first-year of service and 2 weeks’ pay for each subsequent year of service, capped at 20 years. Now that legislation has passed, it’s anticipated that progress will be made on how redundancy protection will be reformed throughout this year.

Hurt and Humiliation – There has been an increase in awards for hurt and humiliation in the past couple of years. It is noted that the gap in awards in the employment jurisdiction and those in the human rights tribunal are narrowing. It is expected that awards won’t necessarily continue to increase, but that larger awards are more likely to be made more often and become a standard even for low level claims.

Fair Pay Agreements – The government indicated at the start of this term that it would implement a legislative frame work providing fair pay agreements for particular industries. This includes setting minimum conditions relating to wages, allowances, and leave entitlements. A government task force was charged with overseeing new standardised agreements but it remains to be seen whether these agreements will have a large uptake by the industries they are designed for.

Increased Union Visibility – Last year we saw strike action from nurses, teachers, and court staff all calling on their members to undertake industrial action with the view of trying to secure better pay and/or working conditions. It is anticipated this trend will extend into 2019. As the Employment Relations Act 2018 has also given extra powers and access rights to workplaces for unions. The Act has also placed higher obligation on parties with regards to bargaining and has required employers to provide unions with more information as a result.

Definitions Set to Evolve – Several employment cases in 2018 have questioned the traditional definitions of employees, contractors, and labour hire workers. Dependent contractors who effectively operate or work under the control of an employer do not receive the usual protections employees are afforded under the law. However, predicted changes will likely see more statutory protection for contractors. The Employment Relations Amendment Bill seeks to ensure that those employed by 1 employer, but working under the control and direction of another business, have the same rights to allege personal grievances as those who are employed by that organisation. While the Bill is currently at the select committee stage, the Government and courts are aiming to continue their efforts around balancing the protection for vulnerable workers against business flexibility requirements.

Relationship property and capital gains taxes

Thu, 04 Apr 2019 23:29:39 GMT

Tax is a currently a hot topic of conversation and this is especially the case now with the recent release of the Tax Working Group’s report.

Of the recommendations offered by the Working Group, talk around the Capital Gains Tax has been front and centre with Government signalling their desire to make changes in this area.
Whilst it is stressed at this stage, they are only recommendations, it is important to consider the implications with regards to relationship property settlements.

New Zealand already has a ‘Brightline Test’ as a form of Capital Gains Tax. The Brightline Test means that any residential investment property purchased after 1 October, 2015 and is then subsequently sold within 2 years is met with tax obligations unless an exemption applies. The legislation was then amended so that any investment property acquired after 28 March, 2018 and thereafter sold is now subject to a 5-year Brightline Test. The Tax Working Group recommendations propose going beyond the scope of the current Brightline Test. The proposal recommends introducing what would be known as ‘Valuation Day”, where any gains on investments after this date would be taxed and would be applied to all assets and not simply those acquired after a given date.

With changes such as this forecast, and amendments to the ‘Brightside Test’ in general, it will be important to address taxation issues with regards to any relationship breakdown. The final report from the Tax Working Group proposes the following concepts when settling relationship property disputes:

The Family Home – Selling of the family home will not attract any tax obligation, but lifestyle blocks may be subject to taxation.

Holiday Homes and Investment Properties – Holiday homes and investment properties will be treated the same and both would be subject to tax. Any income received from these will be taxed in accordance with normal tax rules. This may mean people are likely to retain these assets as part of the relationship property agreement. However, it should be noted that if the property is sold post separation, it would be subject to Capital Gains Tax under the proposals put forward by the Working Group.

Superannuation – Pay outs from retirement schemes such as KiwiSaver will be exempt from investment gains taxes.

Personal Assets – Assets such as cars, boats and other household items acquired for personal use will not be subject to tax.

Companies –How taxation will be addressed in this area is uncertain and the recommendations afforded by the working group offered no further clarification or potential resolutions.

Small Businesses – Small businesses will be taxed at the regular income rate on any gains made.

Shares – it is likely people will retain shares, as any gains would be subject to Capital Gains Tax if the recommendations go ahead. Existing rules will still apply for foreign tax shareholders which will continue to be taxed under the fair dividend rate method.

The proposed changes could mean separating couples will be more likely to retain assets such as property and shares to circumvent any taxation payments at the time of dissolution. Should the changes come into effect, it could mean significantly different ways of splitting assets, to avoid selling or dividing them in a way that would incur taxation costs.

If a party shoulders a larger tax portion at the time of separation future issues will need to be addressed appropriately. This will need to be accounted for when dividing assets and ensure these future issues are addressed appropriately. As such, advice from accountants and tax advisers will also need to be sought in relation to settlements. The proposed changes would ultimately increase the costs of settling relationship matters as they become more complex involving a wider range of third parties.

Whilst these changes are only recommendations at this stage, it is most certainly an area that needs to be considered carefully. Should you need any assistance with your separation, get in contact with our office today.

The season of love, but don't forget to protect yourself!

Wed, 13 Feb 2019 00:36:14 GMT

With love blossoming over Valentine’s Day it’s a timely reminder about protecting your interests when entering into a new relationship.

Whilst no couple intends to separate, unfortunately sometimes it happens. Deciding how to divide your assets when you separate or when a partner passes away can be a dreaded task, especially in modern blended families. However, it is one that can be made a lot easier. You may have heard of a ‘pre-nup’ or ‘prenuptial agreement’, well this is effectively what you need. A Relationship Property section 21 Agreement, or a contracting out agreement as it’s more commonly known, sets out how your property will be distributed should you and your partner decided to end your relationship.

The first question everyone asks is ‘but do I need one?’ There is a common misconception that these types of agreements are only for couples intending to wed, this could not be further from the truth. Our law regarding equal division of assets also applies to de-facto relationships or if you have a child with your partner. If you think that anything other than a 50/50 division is fair, then a contracting out agreement is a must for you. If your relationship ends you may feel the desire for an unequal split due to one person making greater financial contributions than the other or wanting to retain property separately that was existing prior to the relationship. Relationship property is effectively anything acquired during the relationship for the common benefit of you both. This includes, but is not limited to, vehicles, furniture, houses, and superannuation contributions. Separate property is property that is owned prior to the start of a relationship, and while that may start off straightforward, it can quickly intermingle and become relationship property, which may cause tension if a separation were to occur later down the track.

We know that this can be a very awkward conversation to raise with your partner and sometimes partners will respond with ‘do you think we’re going to break up?’ Calmly explain your reasons and the fact you want to protect their assets as much as your own. A contracting out agreement is much easier to sort out at the beginning of a relationship and is a very small investment in protecting your future should the unthinkable happen. It is important to remember that things can change, it is all part of life.

Contact us for some independent advice and we can help you and your partner understand the process and protect both your futures if the unthinkable were to happen - but before you phone us, make sure you have Valentine's Day sorted, everyone needs flowers or chocolates once a year!

What makes us different

Fri, 23 Nov 2018 00:55:06 GMT

What differentiates us from other law firms is our culture, our people.

Most law firms know a lot about the law but our team take the time to get to know you and your family or business to form a strong relationship. We genuinely care about your needs, which is why we are able to provide far more helpful and accurate advice that can save you plenty of time, energy, and money.

We work as a team to make sure everything you want managed or solved is done effectively and efficiently. Our team is made up of individuals who have a wealth of knowledge and they work collectively to meet your needs. No one likes to waste their time or wait, so we make sure we are responsive, make it easy to understand, and answer all your questions. We take into consideration common sense and what your wishes are. We don't make things complicated or confused, we deconstruct the law so its simple and clear for you to understand all the options available to you.

For this reason, we are able to provide you with solutions tailored to your unique circumstances ensuring an outcome that works for you. Whether it is advice on a business venture, the need to change a Will, understanding the cross lease of a property, succession planning for the family farm or business, or anything in-between our team have you covered.

Pride and accountability in our work and a commitment to our clients makes us continually reach for new heights. We don't just say it, we also live it - come and talk to us if you have a legal issue and find out for yourself.

Meet our new solicitor nicola rowe

Wed, 21 Nov 2018 00:57:03 GMT

We are pleased to introduce our very happy, hard working Solicitor Nicola Rowe to you. Nicola joined DK Legal at the beginning of November and has already made a great impression with our clients.

Nicola was born and raised in South Auckland. She attended AUT University graduating with a Bachelor of Business (majoring in management) in 2017 and a Bachelor of Laws in 2018. Nicola worked throughout her time at AUT for Housing New Zealand in the Procurement team. She became well known for her ability to build relationships both within HNZ and with outside parties through establishing genuine trust. She is incredibly dedicated to learning and thrives in busy environments. Nicola is one of those people that constantly aims to please and when you join that with her amazing determination, she is always going to get results.

Nicola left HNZ to pursue her love of law and ended up working for Dave Rice & Associates before joining a very busy criminal law practice based in South Auckland. A wish to settle down outside of Auckland and build her family life, led Nicola to the Hawke's Bay where she is now loving the outdoors and has been for her first dive at Blackhead beach.

Outside of work, Nicola is a long suffering Vodafone Warriors believer and a die hard Maroons supporter. With a Mum who was a Speedway driver, she was always going to end up loving the dirt track and has already found her way to the Meeanee and Palmerston North tracks this season!

Welcome to DK Legal Nicola, it is great to have you on board!

Meet retha - our property expert

Thu, 15 Nov 2018 00:59:35 GMT

Retha du Preez joined DK Legal in March 2018 after relocating from Auckland where she resided since 2001. Retha holds a Master’s degree in Human Rights and Constitutional Law from the University of Johannesburg and a Law degree from the University of Pretoria. Retha then returned to study on her arrival in New Zealand and earned a Master’s degree in Resource and Environmental Planning from Massey University.

As well as practicing law in Auckland, Retha has more than 14 years experience working as a Town Planner for Auckland City. Her significant property law experience comes in handy for all areas of residential property work – including agreements for sale and purchase, loan refinancing, Kiwisaver draw downs, building contracts, and subdivisions. She also enjoys working with her clients to create peace of mind through personalised trusts, Wills, and Enduring Powers of Attorney.

Retha has travelled the world extensively but loves being settled in Hawke’s Bay for its fresh produce, amazing walks, beaches, and wineries! Retha is an avid cook and has used her love of travel to ensure she can whip up anything from Baklava to an amazing Italian risotto and don’t get me started on her Moroccan dishes!

Retha has a wealth of experience in property transactions and an endearing personality that ensures you are in safe, confident, and caring hands. When Retha takes on legal work, her clients certainly reap the benefit of her considerable knowledge, experience, and personal investment to ensure her clients get what they want and are protected along the way.

Refinancing

Tue, 13 Nov 2018 01:01:27 GMT

What is refinancing?
Refinancing is the process of altering one or more loans on a business or property for another. This is most frequently done to increase the amount of a loan or take advantage of more beneficial interest rates or conditions. Given the extremely competitive interest rates currently available at most banks, this is an option a large number of individuals and businesses are taking up. The broad range of banks offering competitive interest rates makes it very worthwhile financially to consider whether you remain within your existing bank or whether to refinance to a new bank.

Existing Bank
It is always worthwhile negotiating with your current bank. Your current bank is unlikely to approach you to refinance to a lower rate, however if they know you are thinking of switching banks they may offer you a competitive rate so you continue your banking relationship with them.

Break Costs
What are Break Costs? Break costs are the fees your bank may charge if you pay off a loan earlier than the fixed interest rate term. If you current loan or mortgage is on a fixed interest rate (as opposed to a floating (variable) interest rate), it is likely you will incur break costs. Your bank will be able to give you an estimate of those break costs and you should do this prior to signing up with another bank for a refinance. You need to take into consideration the break costs when calculating if a refinance is in your best interests.

New Bank
If you decide that moving to a new bank is the best option for you, always ask whether the bank is willing to contribute towards your legal costs for the refinance and/or give a cash contribution. Most banks will want your business and one of the ways they help 'sweeten' the transfer is to offer a contribution to the fees associated with making the change. If you are refinancing from your existing bank to a new bank it is likely that you will need the assistance of one of our team at DK Legal or 247 Property to help you complete the process.

What does a lawyer do?
If you are switching banks our team at DK Legal or 247 Property will arrange for a discharge of the current mortgage security over your property. Your new bank will prepare and send to us the new loan documentation and mortgage instructions. The bank requires that you meet with a lawyer to explain the documentation to you and to complete the security change over your property from one bank to another.

Our 247 Property division of DK Legal offer a comprehensive and personalised service that deals with your refinancing requirements efficiently yet promptly without cutting corners. If you are considering refinancing and taking advantage of the extremely competitive interest rates currently being offered please feel free to contact us to discuss your particular requirements.

Leave your family the gift of a will

Thu, 13 Sep 2018 00:03:44 GMT

If you die without a Will you can leave behind major legal and financial difficulties for your loved ones. Without a Will your family has no certainty of your wishes for your funeral arrangements or how your assets should be distributed. This can leave loved ones in conflict as family and friends try and organise what they ‘think’ you wanted. We know this isn’t a parting gift anyone wishes to leave and why it is important to take the time to make a Will.

A Will formally sets out who and what you want to provide for when you die. This can include guardianship of children in your care. It also allows you to leave specific trinkets and meaningful things to people and/or organisations you chose. A Will can include any special instructions you may have with regards to your funeral.

It is important to realise that if you marry or dissolve a marriage, any prior Will you have will no longer be valid and needs to be updated. If you die and you have a partner but no Will, your partner does not automatically inherit your assets. There is an Act of Parliament that dictates how assets are to be divided. New Zealand laws are inflexible as to what happens to your assets if you die without a Will.

A Will can take very little time to organise but are often put off until later. Take the time to ensure your family and friends can grieve your passing without the burden of having to decide what your Will wishes could have been. We have made it even easier at DK Legal as you can submit your Will wishes online in the comfort of your own surroundings and at a time that suits you! We will discuss your wishes with you and ensure it includes all the information required before your Will is signed. If you die without a Will you can leave behind major legal and financial difficulties for your loved ones. Without a Will your family has no certainty of your wishes for your funeral arrangements or how your assets should be distributed. This can leave loved ones in conflict as family and friends try and organise what they ‘think’ you wanted. We know this isn’t a parting gift anyone wishes to leave and why it is important to take the time to make a Will.

A Will formally sets out who and what you want to provide for when you die. This can include guardianship of children in your care. It also allows you to leave specific trinkets and meaningful things to people and/or organisations you chose. A Will can include any special instructions you may have with regards to your funeral.

It is important to realise that if you marry or dissolve a marriage, any prior Will you have will no longer be valid and needs to be updated. If you die and you have a partner but no Will, your partner does not automatically inherit your assets. There is an Act of Parliament that dictates how assets are to be divided. New Zealand laws are inflexible as to what happens to your assets if you die without a Will.

A Will can take very little time to organise but are often put off until later. Take the time to ensure your family and friends can grieve your passing without the burden of having to decide what your Will wishes could have been. We have made it even easier at DK Legal as you can submit your Will wishes online in the comfort of your own surroundings and at a time that suits you! We will discuss your wishes with you and ensure it includes all the information required before your Will is signed.

Trust update: ird numbers and ensuring you don’t get burnt by the “bright-line”

Fri, 09 Dec 2016 01:09:31 GMT

Trusts must now have their own IRD numbers and tax-avoidance measures have been introduced to target those regularly turning over property.

Trusts to have IRD numbers
To allow IRD to collect more information about people who are dealing in land, trusts must get their own New Zealand IRD number when dealing with property.

The “bright-line” test
The “bright-line” test came into play on 1 October 2015. Since then, if you sell a residential property within two years of purchase you must pay income tax on any gains, unless you come within one of the exceptions.

The primary exception is where the property is the ‘main home’. For trusts to have the protection of this exception:

The property must have been the main home of a beneficiary of the trust; and
The person who put the most into the trust (principal settlor), must not own a different main home.

An example of this is Bernard who has two properties, a family home which he lives in, and a student flat which his son lives in while studying. Bernard puts the student flat into a trust and makes his son a discretionary beneficiary of the trust. The trust cannot use the main home exception because the principal settlor of the trust (Bernard) has another main home.

The requirement that the property is occupied mainly as a residence is the key part of the exception, ensuring that properties used mainly for investment or other purposes must pay tax.

Where to from here?
If you are a Trustee of a Trust and the Trust is anticipating entering into a property transaction in the near future it is important that you make sure you can comply with these new requirements.

If you are uncertain about how this might affect you, please get in touch. We’d be happy to help you out.

Click here for more on Trust Law .