Bear with me please. I need to start with a bit of a recap as to how we deal with disputes.  There are three key requirements:  The  first requirement  is know-how.  We will bring our knowledge and research capabilities to the table. This is mostly on us.  The  second requirement  is an agreed strategy to get from A to B.  Although the best strategies are generally very easy to understand, they also have to take into account all the complexities of the situation, the people involved, and the law. It’s our job to come up with ideas. However, agreeing on a strategy is fundamentally a collaborative exercise. The strategy has to make sense both to you and to us.  At Lucas and Lucas, we have found that telling the story, and setting out the client’s side of the argument carefully in writing often goes a long way to resolve the problem. On one level, this is most obviously about getting to the heart of a matter in a way that cannot be ignored. However, it's more than that. It’s also about seeing in a very tangible way the strength of your own position. Seeing is believing.  The  third requirement  is the ‘partnership’ that must exist between the lawyer and the client for the purpose of resolving your problem.  In any genuine partnership, trust and confidence has to go both ways. Both parties must act honourably towards each other. Both must understand and know what they are doing, and why. All this seems so easy right? So, what’s the catch?  Well, we have never yet had a client come to us with an ‘easy’ dispute. We listen. We look at the problem. We research. We arrive on a strategy, and there’s a sense of initial relief. So far so good. But then as we continue to journey together, hiccups will inevitably arise along the way.  Unfortunately, when it comes to disputes, difficulties are par for the course. And when they occur, it’s important to be able to go back to the agreed strategy, and reassess it objectively. This is something that builds resilience. Being well researched, and having the case set out helps too.  Why then is trust and confidence between you and your lawyer so important?   This is a topic we could talk about all day, but for now let’s restrict ourselves to just one issue. The truth is that the single most difficult thing for most people when the going gets tough during a dispute is mental fatigue. We are talking here about the difficulty of holding things together.  In our experience even clients with the best strategies will find themselves feeling stressed or uncomfortable at some stage. Disputes evoke these emotions. Mental resilience is not about avoiding discomfort. It is more about how one reacts to a stressful situation. A client who is ‘holding it together’ will retain the ability to see the other person’s point of view, and to trust.  The bottom line is that people are always tested in stressful situations. That’s why it’s important to build up ‘trust and confidence’ between you and your lawyer from the outset.   When the going gets tough, everyone must stay the course, stay objective, and stay together.

The US Defense Secretary Donald Rumsfeld once famously stated:   ‘…there are known knowns ; there are things we know we know. We also know there are known unknowns ; that is to say we know there are some things we do not know. But there are also unknown unknowns —the ones we don't know we don't know. And… it is the latter category that tends to be… difficult….’   If you are wondering how to gain a measure of confidence about your legal position, read on.  Let’s start with the story arc of virtually all the thousands of legal cases that are reported each year.  The judge will start off by describing the facts, i.e., what happened. My neighbour has a big tree. There was a storm, and a branch fell on my car.  Next, the judge will introduce some kind of rule or legal principle. Thou shalt not be so careless that you harm your neighbour’s goods.   The judge will then try to apply the law to the facts. Okay, your neighbour had a duty not to be careless. Does that mean he should have trimmed his tree? Was it predictable that if he didn’t trim his tree that a branch would fall on your car? Should you have parked somewhere else?  Lastly, the judge will sum up, giving you the outcome. In this example, either your neighbour will be found not liable, or your neighbour has to pay you some money.  The legal system works on the very simple idea that like cases should be treated the same. In theory, that means that if you can find a similar reported case, then you should be able to predict your outcome.  In practice, your lawyer will need to research the law, and other similar cases. A lot of people gloss over this point, but it is very important – especially in a complex case - that you understand how that research process has gone.  When your lawyer reviews the research trail with you, it should help you understand how well you know what you know. You should also be able to gain a sense about what you don’t know, and what the risks are. At Lucas and Lucas we discuss five key questions to help our clients understand the research process. This is how you can ‘know’, and gain the measure of confidence you are after.

Roger* came to us in a bit of a pickle. Roger had purchased his own home about three ago, with the assistance of a bank loan – a loan which was secured by a mortgage. Up until about a year ago, Roger had been making all of his mortgage payments – in full and on time. But then Roger’s fixed-term employment came to an end. Despite commencing his job-hunting several months prior to his employment expiring, Roger had not had any luck finding a new job. Fortunately, Roger had some savings, and so he was able to keep up with his mortgage payments……until his savings ran out. Roger eventually got a new job – permanent and full-time – and so he immediately began making his mortgage payments again. Roger was about six months behind and could not afford to make his current payments as well as repay the arrears. But he had been open and honest with the bank about his predicament, and he had managed to get approval to use some of his KiwiSaver (on grounds of ‘hardship’) to cover the arrears……and the bank knew this. So it came as a shock to Roger when he received a letter from the bank which said that in a couple of weeks the bank was going to foreclose on him and initiate a mortgagee sale – i.e. the bank was going to sell his home from under him. The bank’s actions simply didn’t make any sense - a) Roger was back in permanent and full-time employment; b) He was making his payments; and c) He had organised for the arrears to be paid up as well. But despite the fact that the bank knew all of this, it was pushing ahead with a mortgagee sale and doing so in a depressed housing market. First, we listened to Roger. Then we set about making things make sense. It took a month or so for the dust to finally finished settling, but the immediate threat of being homeless was sorted within a week. If you should find yourself in a similar situation, give us a call 03 477 8080. *Name changed.

Jack and Jill are married with children from Jill’s previous marriage. Jack and Jill have set up a trust and transferred the family home to the trust. Jack and Jill are concerned that if Jill dies first: Jack should be able to carry on living in the family home and downsize if he wants or needs to do so. However, … Jack may also wish to enter into a new long-term relationship, and … If Jack and his new partner commence such a relationship, the family home may become intermingled with the assets of Jack’s new partner, and … If the new relationship subsequently breaks down, Jill’s children’s inheritance may end up being a lot smaller than Jack and Jill initially planned. and to mix things up a little more... Jack and Jill’s trust can facilitate multigenerational ownership of the family home, and it might help Jack and/or Jill to qualify for a Residential Care Subsidy. On the other hand, the trust will not really protect the family’s assets from the breakdown of a new relationship. And if the children go and live overseas, any distributions from the trust will likely incur some pretty hefty tax liabilities. Of course, Jack and Jill could wind up the trust. But then they would lose the benefits which the trust currently/potentially provides. It is often at about this point, that people like Jack and Jill decide to put all of these questions in the “Too Hard” basket……because it seems like it is all just a bit too much. At Lucas and Lucas we can help you to identify, separate and weigh the different issues that confront you, along with the difference options that may be available to you.

If you take a look at the Record of Title for your residential property, there is a pretty good chance you will find the words Fee Simple written on it. Essentially, this means that you own the land and (probably) everything built on the land. But it might not say Fee Simple. It might instead say Leasehold, or perhaps Stratum in Freehold. If you purchased the property recently, then this would (hopefully) have been brought to your attention long before you actually took possession of the property. But if you purchased the property some years ago and you haven’t given any thought to it since then, then this may come as a surprise. In practical terms having a title that says Leasehold or Stratum in Freehold is going to depend very much upon the specifics of your circumstances. But if you are thinking about selling your property in the near future, then working through any possible implications is recommended to help your sale go smoothly. If you have any questions regarding your property’s title, please give us a call.

A father wanted to ensure that his children would all receive equal treatment, so he set up a trust and appointed the eldest two children as trustees. After the father died the trustees treated the trust as a private fund – favouring certain siblings (including themselves) and ignoring the others. The trustees claimed that their dad had given them oral instructions that justified their actions. Anyone they gave money to was forced to sign an agreement that required the money to be repaid if the distribution was ever disclosed. Other children didn’t receive anything. They knew this was definitely not what their father intended, but were uncertain what they could do about it. When these children asked for copies of the will and the trust deed, they were curtly rebuffed. The non-trustee siblings were also unwilling to help – frightened that they would be forced to return money to the trustees if they did. Eventually one of the children sought our advice and we helped them challenge the trustees. We had to file proceedings to remove the trustees. Faced with removal and possible legal action for breach of trust, the trustees yielded and a fair settlement was reached. Our client stood up for herself, stuck to her guns and ultimately prevailed.

Jack and Jill were together for 10 years. They each had two adult children from their previous relationships. They owned the family home as joint tenants and had “mutual” Wills, whereby: a) They each left everything to the other - i.e. the survivor; b) The survivor then left everything to the four children equally; and c) They each promised not to change their Wills. When Jack died, Jill became the sole owner of the family home – along with everything else that had been Jack’s. At this point, Jack’s children weren’t worried because they knew about the mutual Wills, and had been assured by Jack (during his life) that when Jill died, they would get half of her estate. Imagine their shock and bewilderment when Jill died a few years later and they learned that: a) Following Jack’s death, Jill had signed a new Will (with a new lawyer)… b) …which left everything to Jill’s children and absolutely nothing to Jack’s children. Of course, situations like this can be avoided – or at least mitigated – by careful documentation. But this situation is what it is…….and what it was for Jack’s children, was utterly gut-wrenching. But there is always hope. So, if this is you – or you’re worried that it might be you – then come and talk to us.

Dividing property in the aftermath of a failed relationship can unleash powerful emotions and can drive people to say and do things they would not normally do. When our client ended her marriage she was prepared for unpleasantness, but she never anticipated the ferocity with which her husband would seek to deny her the ability to rebuild her life. He made vicious allegations, concealed assets and altered documents. Correspondence went unanswered for weeks and her health suffered terribly. The dispute in this case centred upon the control of a family trust and a management company. At one point our client received a letter from her husband’s law firm informing her that the other trustees (her husband and a trust company appointed by him) had decided to remove her as a trustee and director. This would have allowed him to gain access to the company’s bank accounts and to remove relationship property. We secured urgent court orders to prevent this from happening. That gave our client time to pursue her relationship property claim and gain a share of the trust assets.

What happens when you raise a question and the trustees’ reaction seems unreasonable? People tend to be defensive if they feel like they being accused of something. Unfortunately, rather than owing up to a mistake or being up front with information, the temptation for trustees may be to duck for cover. Sometimes a trustee’s reaction is legally significant in itself. The court will look at all the circumstances, including the trustees’ reactions. If you feel that your enquiries have not gone well, give us a call.

‘…You are just a discretionary beneficiary. You have no rights…’ That’s what a lawyer told a client of ours. This claim reflects how things used to be for many beneficiaries, but it’s never been true, and times have changed. Even discretionary beneficiaries are entitled to have the trust administered properly. Each beneficiary has the right to be considered from time to time. The trustees have to consider whether to help. If your trustees have never contacted you or shown any concern for your welfare, that may be an indication that something is amiss. If you want to discuss your rights, give us a call.

Your father, your mother, or perhaps another relative set up a trust. You had a close relationship with this person before he or she passed away. You were told that you were ‘in the trust’. Then at some point after the funeral new trustees took over. Things changed. You know something isn’t quite right, but you can’t put your finger on it. The new trustees seem to be helping someone else. Meanwhile you feel like you are being ignored. If you are feeling like this, give us a call.

The first thing you will notice about the Declaratory Judgments Act 1908 is its age. This is law has been around now for more than a century and it’s still very useful. A declaratory judgment is a ruling from the court about a legal state of affairs. You might want to know for example whether a trustee was validly appointed. Or about whether a trust deed permitted the trustees to act in a particular way. We all know that trust disputes – like all disputes – get emotive. It’s not uncommon for beneficiaries to think that the trustees have it in for them. But if you say that, you can bet that conversation will get heated. Did the trustee have it in for you? Who knows? The conversation may well end in a stalemate. From a practical perspective it’s often much easier therefore to have a discussion about questions where there is an objectively right answer. That’s where the law comes in. Because often at the heart of even most heated trust disputes there is a serious question about whether the trustees have acted lawfully and in accordance with the documents. These kinds of questions don’t relate the trustees’ intentions. It’s not about whether someone was nice enough. Rather, these are legal questions where there is a right answer. Yes, the human component will still be there. Of course it’s going to be difficult if someone has got the law wrong, but at least a conversation about the law can be more constructive. Seeking a declaration can resolve a dispute, and furthermore, everyone will know the correct answer.