Many of us own an automobile.  However, most of us do not engage in DIY engine repairs. Why? Because most of us don’t really know anything about the nuances of the combustion engine, nor of automobile repair in general. Likewise, most of us do not engage in DIY plumbing, electrical repair, or the manufacturing of pharmaceuticals or explosives.  We leave this to the experts. The same wisdom needs to be applied to the drafting of our Wills. At its best, the drafting of a Will that accommodates the circumstances and serve the needs of a given individual, combines technical expertise with creative writing. Online, do-it-yourself Will kits, are the preschool paint-by-numbers equivalent. If you have lived your life in a paint-by-numbers, fill-in-the-blanks, no-special advice-ever-needed kind of way, then you might just get away with a fill-in-the-blanks kind of Will. But most people won’t, because most people are living lives that involve varying degrees of nuance, complexity and uncertainty. Most of us are living lives that are far from simple......and we need Wills that have been written to suit. At Lucas & Lucas, we take the preparation of Wills seriously; not only because we want you to be happy with your Will but because we want those you leave behind to happy as well.

As you are probably well aware, there are commercial entities that offer services regarding the administration of trusts and deceased estates. These entities will often prepare a free Will for you (or virtually no charge). In exchange for preparing your free Will, these entities appoint themselves as the executor of your estate.  So when you die, the entity will administer your estate. This kind of approach to Will-making and estate planning is problematic for a number of reasons. First of all, the Will and the Will-maker are not the primary focus.  Rather, the primary focus is the entities’ business model – i.e. cultivating and maintaining a steady stream of estates-in-waiting. The greater the number of free Wills that the entities hand out, the greater the number of future revenue streams that are locked in for the benefit of those entities. Now of course, when a lawyer prepares a Will for a client, the lawyer (not unreasonably) anticipates/hopes that they (or at least the law firm that employs them) may be engaged to assist with the administration of the Will-maker’s estate. Nonetheless, the Will-maker is completely free to change lawyers, and the executors of the Will-maker’s estate are (usually) equally free to engage a different lawyer and none of this requires any change to the Will itself. But if the Will has been drafted by one of these commercial entities, the only way to end the entities’ involvement – realistically – is for the Will-maker to prepare a new Will. Secondly, the economics of these transactions are more than just a little opaque. While it’s true that the Will itself comes free (or virtually free) of any immediate charge, the commercial entities in question will more than make up for this loss-leading when they begin invoicing the Will-maker’s estate. So while a Will-maker might save themselves anywhere between $200-$1500 (depending on the complexity of their affairs) by getting a ‘free Will’……their estate will incur legal costs that have the potential to be many times greater than whatever savings the Will-maker made by not going to a lawyer who specialises in estate planning and the drafting of Wills.

Sam* and Liz* came to us following the death of their mother, Helen*.  Their father (and Helen’s husband) had died some years earlier. A few weeks after Helen’s funeral, the lawyers for Helen’s estate advised Sam and Liz that a gentleman, Henry*, had come forward claiming that at the time of Helen’s death, he was Helen’s de facto partner. Not only was Henry asking for half of the value of Helen’s estate, he also seemed to be claiming that most of Helen’s personal chattels in fact belonged to him. Sam and Liz had been aware that Helen had a friend called Henry. Moreover, they had been aware that Helen and Henry regularly had meals together, and that Helen often paid Henry to assist her with various household tasks. However, they could not understand (much less accept) Henry’s claim that he and Helen were in a qualifying de facto relationship – that is, a relationship that had legal recognition under the Property (Relationships) Act 1976, and which therefore granted property rights to Henry. Helen and Henry had never: Lived together; Owned assets together; Managed their finances together; Announced or otherwise presented themselves publicly as a couple; or Otherwise gone about their lives together in a manner that suggested they envisaged their future as a shared one. It didn’t make sense to Sam and Liz. Nor did it seem right or fair, and so consequently, Henry’s claims were extremely upsetting for them. Their unhappiness with the situation only increased when they learned that Henry’s lawyers had formally filed an application in the Family Court. Our role here at Lucas and Lucas was to guide Sam and Liz through the process of opposing Henry’s application. This involved generating the Court documents and correspondence, but more importantly and more fundamentally, it involved making sure that Sam and Liz didn’t feel baffled or intimidated by the legal process. We helped them to understand the comparative strengths and weaknesses of their case and Henry’s, and we helped them to prepare for a settlement conference – a settlement conference which ultimately produced a positive result for Sam and Liz. If you have any questions regarding claims against an estate please get in touch. * All names have been changed.

Is there something similar going on with Wills and our collective attitude towards them? Having a Will that you feel good about, that makes sense to you, and that will not likely lead to the implosion or explosion of your family, is really quite important. And yet in spite of this, Wills are often treated as an afterthought; a box that has to be ticked. Some lawyers routinely use Wills as a loss-leader, and some clients view them as irritation – something barely worth paying for. Quite predictably, the net result can be clients getting exactly what they’ve asked and paid for: a ‘simple Will’. What even is that? Presumably, a ‘simple Will’ is a Will that says you leave everything first to your sweetheart of many years, and then to your children equally – those children, of course, being exclusively the product of your union with the aforesaid sweetheart. And if your life has played out in exactly this fashion, then a ‘simple Will’ may just get you over the line. But if you have: remarried and you have children from your previous relationship; or remarried and your new partner has children from their previous relationship; or engaged in extra-nuptial relations outside of your union with your sweetheart of many years, and those extra-nuptial relations have produced children… In order for a ‘simple Will’ to work, you need to have led a simple life. If your life has been a little more ‘nuanced’, then you are going to need a Will that has been designed to accommodate your personal situation.

Maintaining a current form of Government-issued photo ID has a number of obvious benefits – a current Passport allows you to travel overseas; a current Driver Licence allows you to operate a motor vehicle; a current Firearms Licence allows you to own and operate firearms. When people are working, going on holidays and are otherwise relatively active, they tend to make a point of keeping their photo ID current, and renewing it when it expires. But as people get older, maintaining a current form of photo ID has a way of becoming less and less of a priority. This is understandable: as a person’s desire and/or ability (physical, financial or otherwise) to travel, drive and/or operate firearms declines, so too will the perceived usefulness of a Passport, Driver Licence and/or Firearms Licence. Of course, in the case of Driver Licences and Firearms Licences, maintaining these requires that various criteria must be met – e.g. functional eyesight, mental capacity. But there are no such requirements for a Passport or, for example, a Kiwi Access Card (the successor of the 18+ Card). This is worth keeping in mind – especially with regard to deceased estates. Why? Because administering a deceased estate - when one or more of the executors has not maintained a current form of Government-issued photo ID - can be (to put it mildly) very difficult. If you are named as an executor in someone’s Will, it is imperative that you maintain a current form of Government-issued photo ID. If you do not have a current form of ID, and the prospect of acquiring one feels a bit daunting, please contact us.

Mr Sutton and Ms Bell were in a de facto relationship for about seven and a half years. Just prior to the commencement of the de facto relationship, Mr Sutton transferred his residential property in Auckland to a trust. After the relationship ended, Ms Bell claimed that Mr Sutton had transferred the property in order to defeat Ms Bell’s rights under the Property (Relationships) Act 1976 (“PRA”). In the High Court, Ms Bell successfully argued that the transfer (or disposition) should be set aside under s 44 of the PRA, and was awarded a half interest in the Auckland property. This ruling was later affirmed by the Supreme Court. In reaching this decision, the Courts were influenced by the Supreme Court’s ruling in Regal Castings Ltd v Lightbody, a case which dealt with dispositions made with the intent to defraud creditors within a commercial context. The decision in Sutton vs Bell is significant because prior to Sutton vs Bell, dispositions of this nature (i.e. transferring your chief assets to a trust) were only at risk of being set aside if they were made after the commencement of a de facto relationship. But in Sutton vs Bell, the Court held that (following separation) dispositions of this nature will be caught by s 44 of the PRA and set aside if the parties were contemplating the commencement of a de facto relationship at the time of the disposition. -- The lesson in Sutton vs Bell is this: if you want to protect your assets from a potential future relationship property claim, enter into a Contracting Out Agreement with your partner, and do so at the earliest opportunity – i.e. before you are contemplating the commencement of a de facto relationship.

Many of us know a story about someone buying a house off the plans at a supposedly fixed price……only to have their costs blow out, and ultimately to be left in a battle with the building company. The resulting stress and the financial consequences, can be life changing…and not in a good way. Construction contracts are usually ‘take it or leave it’, where there isn’t a lot of wiggle room – especially when you’re working to a limited budget. This means it’s really important that you understand what the contract says – especially in terms of where there may be potential for the cost of the build to increase. We can help you to properly understand exactly what it is that you are signing up to……before you sign up to it. At Lucas and Lucas we can identify and help you to understand, where the terms of the contract may leave you exposed, and provide advice on what you can do to limit (or eliminate) that exposure. Thinking of building a new house? Give us a call.

As parents, we all hope that – if nothing else – our children will grow up to be able to look after and provide for themselves. But of course, this is not always able to be the case. Aside from the immediate challenges that this can present, the desire/need to make long-term provision for the child, can weigh heavily upon parents. Oftentimes, this weight is added to by question of where, how and to what extent the child’s siblings can also fit into the equation. These are not easy conversations to have. Consequently, it can be tempting to simply ignore the issues, or else to impose a solution that sounds good, but doesn’t actually address the legal and logistical details required. At Lucas and Lucas we know every client is an individual who is dealing with their own unique set of circumstances, and we consider every problem on the basis of its own unique set of facts. We can help you to identity and isolate the key issues, present you with and advise you in respect of the various options, and ultimately help you to formulate a plan.

We have all seen or heard about letters from lawyers like this: …My client demands this, that and the next thing. Right now, with a cherry on top… It’s what we call a wish list. These letters are easy to draw up, sometimes even without thinking. But you know what the catch is. It’s obvious. By itself, a wish list won’t make anything happen. That’s because this sort of letter is all about what you want. Now, of course we do care about what you want. However, if you are really serious about solving your problem, you will need to focus on what the other side hopes for, dreams about, and (yes) even what they might not want to happen. That’s what we call leverage. It’s a concept that is so important. Because what matters most for you is what will motivate the other side. It isn’t always easy to find, but happily for you it is usually very easy to recognise. Finding leverage is part of our job. Don’t be content with a mere wish list. You’ll feel the difference when you see a letter that is drawn up to motivate the other side. Give us a call.

As numerous as trusts are in NZ, changes over the past 10-15 years in regards to case law, legislation and government practice (particularly with regards to taxation) have caused trusts to become a bit of a question mark in many people’s minds. Are there still any benefits to setting up a trust? Yes. If you are in business, a trust can protect the family home from commercial creditors or litigious customers. Subject to a number of ifs, buts and maybes, a trust can still be a useful vehicle for intergenerational or otherwise long-term asset management. And – subject to even more ifs, buts and maybes – a trust can still be a useful vehicle for protecting assets from relationship property claims. Of course, the potential effectiveness of a trust is very much dependent upon the trust being properly administered. It’s not that trusts are no longer of any use or relevance. Rather, it’s that the question of whether or not to employ a trust, is more complicated than it used to be. We can help you to answer that question.

Here are the three points that come up every time we help a client who wants to resolve a dispute. What is the strength of your case? This has to be your starting point. Bravado is all very well but it is so much easier to hold your ground when you know that your position has substance. What is your strategy? First off, you must have a strategy. This is basically a road map of how you intend to get to the best outcome. Developing a strategy starts with understanding your position. Sometimes a diplomatic solution is possible. Sometimes to protect your position, you must stand up for yourself. Whatever approach you take, it’s important to understand how the system works. You will also need to explore what leverage you might have to influence the conversation. Are we all on the same page? The strategy that we finally settle on has to make sense not only to us, but also to you. Working collaboratively with clients builds trust; and trust builds resilience when it counts.

If you are in a dispute, chances are that you already know what the other party ‘should’ do. Most likely, you feel frustrated because the whole argument seems unnecessary. You wouldn’t be alone in thinking… ‘if only these people would be reasonable, then I wouldn’t have to waste all this money on lawyers’. We understand you feeling like that. The question now is – what do you actually want your lawyer to do? When people say to us that they want a ‘solution’, what they really mean is that they want us to find a way to get another person to change, to think differently ... ’ Invariably the key to getting a successful outcome in a legal dispute is paying attention to ‘leverage’. This concept is important. It’s no good looking at what the other person ‘should’ do. The question is, what are you going to do that will change the conversation. That’s where we come in. How do you go about finding leverage? Well, it can be difficult, but that’s our job! The truth is that there is no magic bullet. There’s no one size fits all. Maybe you need to focus on a legal point that has been overlooked. Maybe you need to do something to help the other party see the strength of your case. Maybe the ball has been in your court too long. In every case it’s a matter of focussing on the issue and developing a concrete strategy. The first thing we will do is listen very, VERY carefully. We need to understand exactly what the issues are for you, and the strengths and vulnerabilities of all sides of the argument. We’ll put our knowledge, experience and research capacity at your disposal. We understand how the court system works, and we’ll help you find a strategy that will give you the best chance of resolving your dispute. The goal is to find realistic ways to change conversations that have stalled.