The outbreak of COVID-19 is a very strong reminder that anyone over the age of 18 should have a will. We recommend you review your current will to ensure it reflects your current wishes. If you don't have a will you should make one.
If you have been married since signing your last will you should check your will was made in contemplation of your marriage. If not, by law, it will no longer be valid.
Conversely if you have been through a separation or divorce and not reviewed your will, you should do that now.
There are strict legal requirements for a will, it must be in writing and the will maker's signature must be witnessed by two people who are not named in the will. The signing of a will must be completed with the will maker and both witnesses together in each other's presence.
Contact Annabel Sheppard, Sue Anderson, David Haigh or Jenny Turner to discuss your current will or to make a new one.
Powers of Attorney
In times of uncertainty as to ones affairs a power of attorney can become an invaluable document to assist your business and affairs continue as usual. Powers of attorney allow ones affairs to be managed promptly with continuity in situations of ill health, absence or accident.
A power of attorney can authorise someone (your attorney) to make property decisions for you in New Zealand should you become physically incapacitated while you are in New Zealand or find yourself outside of New Zealand for a prolonged period, perhaps unexpectedly. As a standard power of attorney can only be in effect while the donor has capacity an attorney will be acting on your instructions so you retain control of your decisions.
A company can sign a power of attorney while trustee's can execute a deed of delegation.
Two separate enduring powers of attorney (EPA) exist, one for your property matters and another for your health (personal care and welfare matters). The enduring component of an EPA means it continues should the donor lose their capacity.
An EPA for property provides authority for someone to carry out certain functions for you. For example, to pay monthly bills, to buy or sell property, to make investment decisions.
A health EPA will only come into effect should you lack the capacity to make those decisions yourself. In that situation your attorney will be working with your doctor or health professional to create the best course of action.
If you lose capacity without EPAs in place it will take a more expensive and timely court application process before your affairs can be managed.
Please review your existing powers of attorney or EPAs
We are moving into a period of increased social distancing, with more people in self-isolation or choosing to work remotely while business continues as usual. Naturally questions will arise as to how business can be completed in those circumstances. For example signing documents.
The Contract and Commercial Law Act 2017 ("the Act") recognises that we live in a digital age. Under the Act many documents will be able to be signed electronically.
Section 226 of the Act sets out that where there is a legal requirement for a signature (other than a witness' signature) that requirement is met if the electronic signature (provided the recipient consents to receiving an electronic signature):
- adequately identifies the signatory and adequately indicates the signatory's approval of the information to which the signature relates; and
- is as reliable as is appropriate given the purpose for which, and the circumstances in which, the signature is required.
We note that some documents will not be able to be signed electronically and that in our experience some businesses do not consent to electronic signature.
Witnessing electronically has also been provided for should someone's signature need to be witnessed to meet the legal requirements for a document to be valid.
Section 227 of the Act provides that the signature to be witnessed must comply with s 226 of the Act (as summarised above) and the signature of the witness (provided the recipient consents to receiving an electronic signature):
- adequately identifies the witness and adequately indicates that the signature or seal has been witnessed; and
- is as reliable as is appropriate given the purpose for which, and the circumstances in which, the witness's signature is required.
As a lessor we recommend that you review your current lease documents and diary any upcoming lease renewals or rent reviews so that the necessary paperwork is completed and the lease renewed or rent review details recorded.
If those renewal or review dates have passed and the lease arrangement remains in place it is likely to be on a monthly basis with either party having the ability to terminate the lease with one month's written notice. This situation does not provide a high level of financial certainty moving forward.
In uncertain economic times ensuring lease obligations and your rights with regard to rental payments are documented correctly should be a priority.
Are your Trust's affairs documented correctly? Have the trustee's decisions of late been minuted and the correct trustee resolutions signed by all trustees?
If a Trust's affairs were to come into dispute at some future time it is very important that there are correct and up to date trust records proving the validity of the Trust's actions and decision making.
Should you require any assistance in updating Trust documentation please contact Annabel Sheppard, David Haigh, Sue Anderson or Jenny Turner for assistance.
Gifting and forgiveness of debt
Generally, the goal or purpose of a gifting programme is to transfer ownership of an asset to another person or entity. Often gifting is undertaken for creditor protection purposes.
In light of what may follow this pandemic in an economic sense, now is the optimal time to review any existing gifting programmes to ensure they have been completed.
If not, we suggest outstanding debt balances are discussed with your accountant/solicitor with a view to completing gifting where appropriate..
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.