Individuals
Below is our range of core services we offer to individuals. If your set of circumstances don’t quite fit any of these categories, contact one of the Core Crew below and they will talk through the issue and see what solution they can come up for you.
Making a Will
It is important to have a Will and regularly review and update it if necessary. If you die without a Will, then your property and personal possessions will be distributed in accordance with the Administration Act 1969 and it is possible that your estate may go to people that you did not wish to benefit from it.
A little bit of advice…
We advise to look at your Will at least every five years or whenever you have a significant change in your circumstances. We list below some of the more common circumstances that should have you off to see your lawyer:
- If you marry, remarry, enter into a defacto or civil union relationship.
- If you become separated and/or divorced.
- The birth and death of children.
- If your assets or debts change significantly.
- If any of your trustees or a significant beneficiary named in the Will dies.
And lastly, please let someone know in your family where your latest Will is stored, where and when it was made and what law firm was used to draft it.
Power of Attorney
For a good overview on Powers of Attorney and the difference between a general POA and an enduring POA, click here.
A little bit of advice…
POAs can be very useful – particularly in the case of an emergency (if you are travelling overseas) or in case you lose your mental capabilities. However, remember that you are giving someone the ability to deal with your property or money so you need to think carefully about the person to whom you plan to give this power to and how much power they are to have. Once you appoint the person as your Attorney, they can act without consulting you and you are bound by the decisions they make on your behalf, so choosing someone you have the upmost confidence in is critical. The person you appoint as your Attorney can be called to account for misusing the power and for acting against your wishes or best interests. However, you will still be bound by any action they have taken that affects third parties.
Estate Administration
For a good overview on Estate Administration, click on our booklet, The Closing Chapter: A practical guide to help deal with the death and estate of close family or friends.
A little bit of advice…
It goes without saying that estate administration is greatly aided by an up to date Will and that your trustee knows which law firm you used to make your Will. As you get older, the more you can do to collate your personal documents together (such as copies of tax returns, bank statements, etc) and tell your trustee where they are located, aids in the administration of your estate.
Buying & Selling Residential Property
We will always encourage clients to bring the Agreement for Sale & Purchase to us before signing so we can review it, this is included in our price to do your transaction. However, the world is not perfect and many people do not do this! So next best thing is to make sure your real estate agent includes some appropriate conditions hence making your Agreement conditional. Failure to include some conditions means you are saying your contract is unconditional and nothing stands in the way of settling your purchase. Some of the most widely used conditions are listed here.
Click here for our fixed fees for Buying and Selling Residential Property >
Lawyers Approval
The Agreement can be conditional upon your solicitor’s approval of the form of the Agreement or of the title. A solicitor is only entitled to refuse approval if there is a genuine legal problem with the form of the Agreement or with title. So if we discovered that there was an illegal right of way not registered on the title, the Agreement could be cancelled. Likewise, if we found that there was a legal problem with the Agreement, then the Agreement can be cancelled. Remember solicitor’s approval does not allow you to simply walk away from a contract you have regretted signing.
Finance Approval
If the Agreement is conditional upon your arranging finance on terms acceptable to you then the Agreement can be cancelled and you can walk away if you are unable to arrange finance on terms suitable to you. You must, however, make a genuine effort to obtain finance and once again, this condition cannot be used to get out of an Agreement simply because you have changed your mind. Even if you have pre-approval of finance, it is still important to insert this clause as your lender will still want to look at the property before finally committing to mortgage finance
LIM Report
A Land Information Memorandum (LIM) report is issued by the local Council and contains all information held by that council concerning the property you are looking to purchase. If the Agreement is conditional upon your being satisfied with the content of the LIM then we will be able to cancel the Agreement if there is anything in the LIM that you are not satisfied with. Depending on how this condition is worded, if there is a problem with the LIM then you may have to give the person who is selling the property an opportunity to fix the problem.
Builders Inspection
If you are concerned over any aspects of buildings on the property you are purchasing, it is wise to make the Agreement conditional upon your having the house inspected by a builder or a building inspector and your being satisfied with their report. If you have concerns, our advice is to get us to draft an appropriate and more detailed clause.
Remember – if one of your conditions is not straightforward and potentially complicated, please come in and get us to do the wording for you. It could save a lot of heart ache further down the track. And also remember, including conditions in your Agreement are designed to help minimise risk – not as a tactic to walk away from the Agreement because you have changed your mind or acted in haste.
Why you should update my Will when buying or selling property
If you die without a Will, then your property and other personal possessions will be distributed in accordance with the Administration Act 1969 and it is possible that your estate may go to people that you did not wish to benefit from it. A Will also enables you to add more specific wishes as to what happens to your property upon your death – for example, allowing a relative to reside in the house until that person dies.
What you need to know about relationship property
The Property (Relationship) Act 1976 applies to anyone living together as a couple (be it married, un-married, same sex or in a civil union). Depending on the nature and length of time together in the relationship or marriage, the Act will have implications for each person’s entitlement to a share in the relationship property and which will often include the family home. In cases where property relationship does include the family home and the relationship or marriage is of a long term duration, then the Act provides that both of you should have an equal share in the property. This applies if the house is in both of our names or even if it is in the one person’s name only. This may not be problematic if each person’s contribution to the property is roughly equal, but it has the potential to be troublesome if one person owned the property and the other person moved in later or where either of them has a family and an interest in a home from an earlier relationship. It is worth bearing mind that problems can occur with division of the parties interest in the family home not only in the event of separation but also in the event of the death of either person where there is a contest with one or both of their estates. The good news is that with careful planning and advice it is possible to avoid these sorts of problems. In most cases we recommend what is called a Contracting Out Agreement which entitles you to provide your own agreement for division of your interest in the property which better reflects your contributions and/or your expectations in that regard and thereby avoid the equal sharing provisions in circumstances where they would be unfair.
The ways to own your own property
Family Trusts & Asset Planning
For a good overview on Family Trusts, click on our guide To Trust or Not to Trust.
A little bit of advice…
Trusts continue to be a popular way for people to protect their assets against risk. However, careful thought needs to be given as to why you wish to set a trust up and not because they happen to be “flavour of the month.”
The Trust Deed is a very important document which sets out the rules about how your trust is to be managed, who is to manage it and who is to benefit. Once a trust is established, there are clear legal obligations which the Trustees must meet otherwise you run the risk of it not being legally effective. So our advice to you is to first sit down and think about the reasons why you want to set up a trust, what it is you are hoping to achieve and to understand that there will be certain legal obligations that must be met. Managing your trust is an ongoing commitment.
Click here for our fixed fees for Family Trusts & Asset Planning >
Contracting Out Agreements
A comprehensive overview of the Property ( Relationships) Act 1976 can be found on the Ministry of Justice’s website.
A little bit of advice…
If we could have a dollar for every time a client has said, “No…I don’t need a contracting out agreement – we are in love and we will last for ever……” Agreed it is a subject no new couple ever wants to have but if you are honestly bringing way more into the relationship – you may have a business, your own house and other assets – and your new partner is just bringing his/her bags….then our advice is to make sure you have a Contracting Out Agreement. Remember, just because you are wanting to contract out of the Act, does not mean you are intending to financially cripple your new partner. It actually gives you both an opportunity to sit down and look at the combined assets you are bringing to the new relationship and deciding for yourselves how they are to be divided. If you don’t, you will be governed by the equal sharing rules in the Act.
There are at least two situations where clients should carefully consider the need for a relationship property agreement.
For more, click on “Read More…” below
The first situation is where you are in the early stages of a relationship and it becomes clear that one or both of you have assets or other property that you wish to continue to treat as your own separate property rather than as shared or relationship property. This sort of arrangement is called a Contracting Out Agreement.
Contracting Out Agreements are often recommended for people who are purchasing or may already own their own home prior to the relationship. They can also be important where one of the parties has a much greater asset base they wish to protect or where an older couple already have children and assets from an earlier relationship they wish to preserve.
The second situation where you may need an agreement is where you are in the process of separation. This is called a Property Separation Agreement.
The purpose of the agreement is to make sure that if you divide the assets, property and debt from your relationship, then both parties are secure in the knowledge that the division and any distribution of cash and assets cannot later be revisited by the other party. This can be particularly important where one of you is paying out the other’s share in the family home or business and you want to have some security in knowing that you (or your estate) cannot be subjected to a claim by your former spouse/partner (or their estate) to a greater share in that asset.
If you are unsure whether you might need a relationship property agreement or you wish to get some advice on how and when this kind of agreement could be helpful for asset planning or estate planning, then please Gerard Praat.
Employment Issues
The Ministry of Business, Innovation and Employment has a comprehensive website covering all the basic rights of an employee.
A little bit of advice…
It still surprises us that many employees do not have written employment agreements. By law you must have either an Individual Employment Agreement or a Collective Employment Agreement (one involving a union).
If you do not belong to a union, you are entitled to a written Individual Employment Agreement. What do you do if your employer hasn’t given you one? It is natural to think you have no protection but actually you do by way of the Employment Relations Act 2000 and Holidays Act 2003. Your employer is still required by law to provide minimum terms and conditions (including common entitlements such as 10 days paid sick leave after 6 months) and these must be met irrespective of having a written Agreement.
Dispute Resolution
Dispute resolution is a proven and highly effective way of managing conflict and resolving disputes between different parties. Disputes resolution essentially gives people an alternative to litigation and having their dispute decided by a Court. Disputes resolution invariably requires a trained neutral third party such as a lawyer or some other specialist.
Although there are numerous methods of alternative disputes resolutions, our guide covers the three main ones that are commonly used in New Zealand: negotiation, mediation and arbitration.
A little bit of advice…
Convincing clients to mediate can be difficult – particularly if the client is angry or personally affronted by their opponent’s conduct or actions. Some clients feel that agreeing to mediate is in some way an admission of guilt or capitulation. This is not correct and if both parties display a genuine desire to settle the dispute, it can be extremely effective and far cheaper than going down the track of litigation.
Negotiation
The simplest way for disputing parties to sort out issues is to negotiate a satisfactory solution themselves. Negotiation is a process of communication in which parties or their representatives work to reach agreement. This type of disputes resolution may not settle or resolve the dispute, but it is generally the first step taken toward achieving a resolution.
Mediation
Mediation is a confidential and consensual dispute resolution process in which an independent and impartial mediator facilitates negotiation between the parties to assist them to resolve their dispute. Neither the parties nor the mediator are limited by rules of evidence.
The mediator is not a decision-maker, and the process is based on achieving co-operation between the parties. The mediator assists the parties to make their own decisions and agreements. The mediator’s role is to guide the process so that the issues can be defined, the relevant information produced and options explored without undue delay or legalistic procedures.
When a dispute is resolved in mediation, a written agreement which sets out the outcomes of the issues that have been resolved at the mediation is signed by the parties.
Facilitation
Facilitation is a process which is similar to mediation but is more flexible. A facilitator can assist parties to resolve a dispute by negotiation, consultation, information-gathering and problem-solving. A facilitator works with parties to assist in managing communication and potential conflict thereby preventing the escalation of conflict. A facilitator will not provide answers; rather a facilitator will ask questions, assist people to reach increased understanding and assist people to find answers for themselves and make decisions for themselves.
Arbitration
Arbitration is a process for the settlement of disputes in which an independent and impartial arbitrator makes a decision to settle a dispute after considering the representations of the parties. The arbitrator’s decision is called an “award” and is normally final and binding on the parties. The award is written and is enforceable by the courts. The Arbitration Act 1996 contains statutory provisions that govern the arbitration process.
Disputes resolution attempts to solve disputes in a proactive and more constructive approach and which generally does not happen with litigation. If successful, it can be far quicker and more cost effective than litigation. Parties can choose their dispute resolver and this person does not necessarily need to be a lawyer. It is a very confidential process and one which can ultimately resolve the issue before conflict escalates.
For further information on whether Disputes Resolution could be a way for you to settle a problem, please contact Gerard Praat at our Nelson Office.
BENEFIT FROM
Fixed Fees, No Surprises
We understand that uncertainty about legal fees can be a huge worry for clients. We have tried to take some of that worry away by offering different ways of pricing our services.
Fixed Fees
We are able to offer fixed fees on some of our core services including Wills, EPOA and Trust work. Please refer to the specific Service Page for pricing.
Estimated Fees
For services that do not fall into the fixed fee bracket, we will give you our best estimate once we have taken your full instructions and agreed with you what work needs to be done. We will review that estimate regularly with you and advise you if we think it is going to be exceeded.
Stage Pricing
For ongoing matters such as large commercial transactions and some dispute resolution, we can discuss with you a price for each stage of the job before moving onto the next stage.
Hourly Rate
For some complex matters including most litigation, our fees will be charged as set out in our Client Contract but we will do our best to give you an indication of the likely overall cost.