When writing your Will make sure you comply with the formalities set out in section 11 of the Wills Act 2007. Apart from minor exceptions, for a will to be valid it must meet the following criteria:

• be in writing;
• be signed by the testator, or by some other person in their presence and by their direction;
• be clear that it is intended to be a will;
• the signature must be made or acknowledged in the presence of two or more witnesses present at the same time; and
• each witness must sign the will in the presence of the testator.

Wills have been successfully challenged for instance where witnesses have signed the will but not in the presence of the testator; don’t fall into the trap!

​The Property (Relationships) Act 1976 provides for your surviving spouse, civil union partner or de facto partner to choose whether to apply for a division of relationship property under that Act or to take what is left to them under your will, or, where there is no will, under the laws of intestacy. In deciding what to gift your spouse or partner under your Will you should take this into account. You will need independent legal advice if you aim to gift less than half of your estate to your spouse or partner.

I​For a person to bring a claim under the Family Protection Act (1955) they must firstly, be eligible to do so and secondly, demonstrate that the way in which a person’s estate has been disposed of fails to make reasonable financial provision for them. The court can take many factors into account, including a person’s financial resources, the size of the estate and any other relevant factor.
As such, if you are considering excluding or limiting the provision for any one of the following :

• spouse/civil partner or former spouse/civil partner;
• partner;
• child, whether adult or otherwise;
• step-child or former step-child; or
• anyone maintained by you

It is worth providing detailed reasons of why you are excluding or limiting what you are leaving to them. Your professional adviser can also discuss with you whether it is best to detail your decision in your Will or through a statutory declaration which doesn't become a public document if a grant of probate is needed in your estate.
Alternatively it may be worth considering leaving a smaller gift (taking into account the potential costs of a claim and prospects of success) perhaps with a clause to say that if that person challenges your will then they forego their gift. While this in itself is unlikely to prevent a claim, it can discourage a person to bring a claim.

​A person can make a claim against your Will under the Law Reform (Testamentary Promises) Act 1949 if you have promised to leave that person something in your will in return for services rendered or work done, and you have not kept that promise. For example, the person may have taken care of you when you were ill or looked after your property, and in return you may have promised to provide for the person in your will. 
It may not be necessary to prove that a promise was made in writing. The court may be prepared to infer from the surrounding circumstances that there was a promise.  If the court finds that such a promise was made then it can award the claimant payment out of your estate which it decides is reasonable, considering all the circumstances of the case. Documenting your promises will reduce the risk of this happening.  Putting legal agreements including promises into writing is a really important thing to do anyway.

​One of the main grounds upon which wills are challenged is on the basis that a person lacked the necessary mental capacity to give instructions for and sign their will.
If you suspect there will be questions over your mental capacity, if you have had a diagnosis that could affect your mental capacity in the future or if you are elderly, ask a GP or suitably qualified medical practitioner to provide a report or letter confirming that you have testamentary capacity.
​Testamentary capacity is a legal concept. Given the specific nature, it is best to have a lawyer request a report on your behalf to ensure that the medical practitioner knows precisely what they need to determine. The letter from your lawyer and the report from your medical practitioner would then be stored with your Will.

​You don't need to leave your Will with your lawyer, just make sure it is safe, and also make sure your Executor knows where to find it. Many requests to prove a Will in court (referred to as “Probate”) are made on the basis of either a copy will or a lost will.  While some of these are accepted, many are rejected because where an original will cannot be found, there may be a legal presumption that it was deliberately revoked by the person who made it.  In that case any earlier will, (or, where no such will exists, strict legal rules) may dictate how that estate is dealt with. 

Ensure that your lawyer takes detailed attendance notes of your meeting, conversations and instructions when they prepare your will.If someone wishes to contest a will then usually they will request a copy of your will file from the lawyer who prepared your Will.
The more thorough the notes of your wishes, and the more obvious it is that the terms of your will have been discussed in detail with you, and that you have received legal advice about your wishes  the less likely it is that someone will successfully contest a will. If you are making any significant changes that have not been reflected in any previous wills you have made, discuss these with your lawyer.  Again, the likelihood of a successful claim is reduced if there are statements recording the reasons behind your wishes.

​Although in most cases any previous will may be revoked on signing your new and correctly executed will, provided that will has a revocation clause dealing with any earlier wills, once you have put a new valid will in place, ensure any old original wills and any copies you have of them are destroyed so as not to cause confusion on your death. This is particularly important if you believe people who were previously provided for but now you are removing from the will may find your old will among your possessions and use that to justify bringing a claim to challenge your will.

​If you believe that you are being pressured into making a will then talk to your lawyer, family, friends or anyone else who may be able to help and, if necessary, record your concerns in writing.
If you have concerns that someone will, unjustifiably, argue that you were forced or coerced into making a will, or that the provisions were not your true wishes, there are steps which you can take to avoid this.
If possible, ensure that anyone who benefits under the will is in no way involved in the will making process. If using a lawyer, book the appointment yourself, rather than relying on someone else to do this, ideally attend alone and be clear that the wishes are your own and ask your lawyer to make a clear attendance note.

The law and family circumstances change. Tax laws, births, deaths, marriages, divorces and even remarriages can all have an impact on your will and the extent to which any will reflects your wishes.
Once in place, review your will at least every few years and especially so if your personal situation changes e.g. on marriage, divorce or death, or if your financial position changes, for example, if you have provided for one child by gifting them a large asset in your Will but you subsequently sell it.

Ultimately, the best protection is to have your will professionally prepared by a lawyer with estate planning expertise. Your lawyer should make your will clear and unambiguous and will consider your assets and your gifting wishes to work out the best, most secure way to achieve what you want to happen. You spend years working to build up your assets.  It is well worth paying a relatively small cost for an experienced professional to ensure peace of mind and that you have done your best to safeguard your will and your loved ones’ interests.

You don’t need to have all your answers lined up before you get advice on an EPA Property but it certainly helps to process the questions in your mind. The following list includes 12 key things to think about:
​
Do you need to cancel any previous EPA Property appointment?
If you have prepared an EPA Property before, you may need to cancel the appointment. If so, the attorney/s named in the previous power of attorney need to be formally notified in writing by you, your lawyer or your new attorney/s.

Who would you like to be named as your attorney/s – will they agree?
Usually, you can name more than one attorney for financial matters and they can work together. Some jurisdictions limit the number. The more attorneys you choose to work together, the more likely there might be problems. I would recommend you consider keeping the number to a maximum of 2. The person or people you appoint should be financially competent and should be trustworthy. You should talk with that person or people about the role you are asking them to adopt. You will need their full name, address and contact details to complete your instructions.

Do you want to name a successor attorney/s (in case the first named attorney is unable to continue in that role) – will they agree?
I recommend you do nominate a successor attorney if possible as it means the document will survive should there be any reason why your attorney is unable to act (and therefore be more cost effective).

Do you want your EPA Property to become effective immediately or only if you are mentally incapable (with a Doctors certificate certifying incapacity)?
With trusted family members, if you are travelling a lot, or physically incapacitated it might be that you would prefer the EPA Property to come into effect immediately but this gives immediate powers to the attorney and you might prefer to retain sole power so long as you are mentally capable.

If you have named more than one attorney, are they to act jointly (i.e. both must decide) or severally (either can decide) or by majority vote?
My advice on this is very personal to your circumstances. My usual recommendation is joint power for 2 or majority power for more than 2 but, for example, there are cases where one of 2 attorneys may travel a lot and that can cause complications in signing documents.

Should the EPA Property apply to all your property or only to some of your property or to do specified things?
You may wish to limit the EPA Property to dealings with bank accounts only. In most cases, I would recommend broad powers with conditions if there are concerns about the way specific items of property are to be dealt with.

Do you want to impose conditions on any of those powers?
For example, you may want to include special conditions in relation to the sale of the family home or repayment of loans. I recommend preparing your EPA Property at the same time or at least consistently with the terms of your Will so that, for example if you intend to give someone a life interest in your home, that is reflected in your EPA Property conditions.

Who should your attorney consult with and what should they consult about?
The requirement of consultation is a requirement that takes effect before action is undertaken. Examples of persons with whom you may wish your attorney to consult are numerous but obvious ones might include your accountant or lawyer. You will need to provide your adviser with full names, addresses and contact details.

Who should your attorney give information to and what information should they give?
The requirement to provide information takes effect at any time but usually after an action is undertaken. This might involve an attorney providing information to your children or step children for example. By including a provision to disclose information you can help to ensure that your financial circumstances when in the hands of an attorney are more open to disclosure. You will need to provide your adviser with full names, addresses and contact details.

Should the attorney be entitled to profit from acting as attorney e.g. should attorneys be allowed to charge for their time?
All professional attorneys are entitled to charge fees. This can prove costly for your estate but may be necessary. You may also wish to reimburse an Attorney, professional or otherwise for expenses they incur in helping you.

Should your attorney be allowed to apply to the Family Court if for some reason your will is out of date and needs to be changed?
There may be a change in your financial circumstances while the attorney is acting on your behalf that alters the intended effect or validity of your Will. For example, if a property must be sold to meet your expenses but you gave a life interest to it to one of your children in lieu of other bequest.

What other terms and conditions would you like to impose?
There are some things you can do with an EPA Property and some that you can’t. Your legal adviser will be able to take you through your options.

Be wary of one size fits all EPA Property documents. They are like one size fits all Wills. Often ill-fitting and some times not even valid.
In New Zealand you can even expect to pay more for a well prepared EPA Property than for a Will but that is partly because the current form attempts to address many of the problems being faced in this challenging area of law - not least of which is the growth in the number of Elder Abuse cases.
​
For your documents to be effective in relation to house and land property owned in Australia, you will need to ensure it complies with that state’s requirements and lodge your EPA Property with the relevant land registry (each State and Territory has its own).
There are special considerations if you need your EPA Property to apply to other jurisdictions.  Legal advice is essential to ensure you have addressed these.
​
Preparing a sound EPA Property takes time and consideration and shouldn’t be left until you are in a hurry to get documents done. Make some notes based on the matters raised above, before you go to meet your adviser and you will be well prepared.

Next week I will explore the factors you need to consider in preparing an Enduring Power of Attorney for Health and Welfare (documents which deal with adult guardianship)

With longer life expectancy comes an even greater possibility that at least some of your last years will involve mental incapacity from ill health. Life changing injury, of course, can happen any time.

What happens to you and your finances if you lose mental capacity to make decisions during your life time through illness or injury?

If you don’t have documents appointing representatives to make your decisions for you if you lose mental capacity, the Court makes the decision who to appoint and you will have little to no say in who that is depending on the extent of your incapacity.

Most of us don’t want to think about these possibilities, even if we can point to examples in our own or friends’ experiences where things have gone horribly wrong.

The best time to work out what will happen to your finances and your welfare when you lose capacity is NOW.

NO APPOINTMENT OF ATTORNEY = NO SAY

Two examples I have seen where things have gone seriously wrong because there were no Enduring Power of Attorney appointment include:

• •A Public Trustee was appointed by the Court to act as attorney. (This is the most common appointment type where there are no Enduring Power documents in place - and it’s expensive). In that case the Public Trustee acted slowly and with disinterest in the bigger picture for the represented person. For example, while the represented person was out shopping with her carer one day, a Public Trustee officer came and repossessed her car from the driveway of her house and used a handwritten scrap of paper in the letter box to inform her. In her confused state she believed someone had stolen it which caused her a lot of distress and exacerbated her condition.
• A separated wife (of some 15 years) was appointed by the Court to act as attorney. When the adult children who were overseas found out they applied to the Court to reverse the decision and an Independent Trustee was appointed instead, by then most of the money had been spent and was irrecoverable and the represented person’s living conditions for months had been shocking.
  

ONE SIZE DOES NOT FIT ALL

Even if you have documents, they need to be well considered and the subject of solid legal advice.

Examples where I have seen legal documents go wrong include:

• A bossy older son who was appointed Attorney and took control of Mum’s finances after the death of Dad and added an extra wing to his home at Mum’s expense, refusing to discuss the matter with the other children.
• A daughter who took all of Mum’s savings and bought a home in her own name and put Mum into state housing. Again, the other children were not consulted or informed and they thought the house had been bought in Mum’s name but weren’t entitled to see any documents until they obtained a Title search.
• Children who took control of their Dad’s finances to avoid an inheritance going to their Dad’s wife (step-mum), leaving their Dad and step-mum to live frugally by giving only an allowance to their step-mum for food expenses.
• The Public Trustee ceased payments on life insurance policy that had been held for over 25 years because it was a ‘non-essential’ item despite sufficient funds and despite protests from the represented person's family that the represented person had always had an estate plan which included the life insurance policy. This decision seriously changed the terms of the represented person's entire Estate plan.
  

It is really important to prepare for incapacity and to do so properly.

WHAT DOCUMENTS DO YOU NEED?

All Commonwealth countries have the same essential framework for documenting your decisions in these matters, but every one of them has a unique approach. In New Zealand, the documents you need to have in place are called Enduring Powers of Attorney (Property) and Enduring Powers of Attorney (Health and Welfare). In some Commonwealth countries these powers are all combined in one complete document. In other countries, an Enduring Powers of Attorney (Health and Welfare) is called an Enduring Powers of Guardianship document. If you own property in more than one country you will need to have more than one set of documents.

If you are in Australia (or own property in Australia), you also have to consider every State and Territory has different rules. I know this first hand from having worked in four different Australian jurisdictions.

So, what things should you consider in preparing an EPOA (Property) or an EPOA (Health and Welfare)? Next week I will explore the subject further.
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For many of us, starting our own business is one thing we dream to do but unfortunately, of the many hundreds of thousands of new startups every year, over 80% wont make it past their first year.

​A few articles ago I gave 6 Legal Tips for Small Business – those tips could apply to all small businesses no matter what stage of development the business is at. 

This article gives some special tips for startup businesses. To get the best use out of the article, I suggest that you don’t just answer the questions raised with vague comments to yourself – but really ‘get inside’ each issue. 
​
So, here goes, here are some things for start up businesses to consider if you haven’t already thought of them….

1. Do something you enjoy – It’s no use running a business you hate.
2. Have an end goal in mind – What is your reason for business?  Is it simply to succeed with your dream so your business is in effect a way of life or will it provide for you and your family going into the future? Whatever it is, keep your goal in mind and strive towards it at all times.  It is your compass.
3. Do something you know – if you want to start a business but have no experience in the field you are entering then you have a steep learning curve to climb. If you need knowledge then acquire it via training or get someone who has the experience to help you.  Be honest with yourself about your strengths and weaknesses.  
4. Research your market – ‘Market’ means customers, referrers and competitors. Just imagine your typical customer, their age, where they are based and their income. What do you offer them that your competitors don’t?  What referral sources are open to you?  What is the future likely to bring for what you will be offering?
5. Read up on what the government, local council and the Internal Revenue Department need – There are hoops to jump through and its best to have jumped these or be ready to at the outset.
6. Get professional legal and accounting advice – Although you may read about a legal structure which is right for someone else, it may not be right for you because of your personal circumstances so it’s always wise to seek the advice of a qualified lawyer or accountant as you are setting up your business. An initial 30 minute consultation can be free or certainly low cost and it will help you in the longer term.  Take a look at my 6 Legal Tips for Small Business – these help to identify some of the legal issues you will face.
7. Be extra careful if your startup is part of a franchise – There are some really great franchise operations but there are also some really bad ones around.  Talk with existing franchise owners if you are thinking of going down this route and definitely spend the cash to get legal advice on the franchise documents BEFORE you sign.  Consider subscribing to News and Views  because I will be writing more on this subject in the near future!
8. Prepare a Business Plan – A business plan takes your idea, and (with discipline and effort), converts that idea to a detailed strategy.  The government has a free Business Plan template online and it’s just fine for purpose.  The more you put into your plan the more you get out of it.  For example, my first business plan took around 20 hours but at the end I had a clear and defined strategy for going forward over the next 3 years and in the first months, when it was all quite overwhelming, the business plan served as an anchor.
9. Identify start up costs – For most start ups these are significant (for example if you are going to open a restaurant there are so many initial costs such as shop fitting, equipment, decorating, printing, advertising, insurances, cleaning costs) so make sure you account for them all.  A good accountant will be able to help you work out the likely costs going forward depending on the type of business you are looking at. Don’t forget that your salary is a start up cost – there is no point in business if you don’t intend to get paid out of it!
10. Determine how many customers you need  to meet your profit projections -  Once you have your business plan ready break it down so you know just how many sales you need per day to meet your weekly, monthly or even yearly profit projections. You’ll then know instantly if you are ahead. You can easily put a spreadsheet together to add up sales and costs on a weekly basis then you can make adjustments if things are not quite going to plan.
11. Location, location, location – If your business plan is that you need a location, think really hard about where that location will be.   Premises and fitout costs involves a huge overhead for a business and in reality you only get one shot at getting premises right as once you have signed your  lease it’s going to be hard (and expensive) to get out of it.
12. Discuss your ideas – But only with those people you trust. Honest feedback from trusted friends and family is essential. If you know someone who already has a successful business then ask them to go through your ideas as there maybe something you are missing or could do better. But good ideas do get stolen so be careful who you discuss your plans with especially if you are developing something online.  Having a Non Disclosure Agreement (NDA) can help with your sense of confidence in talking with others, but if you haven’t put in some intellectual property protection measures at the outset, no NDA will help you.
13. Start small and grow big – It’s OK to be small if it is earning you the money you need from it.  Once you have found success you can duplicate your formula if you really want to.
14. Control your ambitions ​- Although we all think that our ideas are gold, when it comes to planning be cautious and realistic with projections and don’t get caught up believing, for example, that your business will keep doubling in turnover each year. Such beliefs are very unlikely to become reality and may cost you your business.
15. Start while you are employed (if you can) - Try not to quit your job first and then work on your business. If you want to start, ensure you have all your plans ready and a location in mind. Many people quit their jobs and then begin developing their plans. This can cost you about six months with no revenue because there is always something to slow you down whether it is the bank not lending to you or government red tape. If you can start earning while you already have a steady job then you can test your idea before losing that (almost) guaranteed income.  Otherwise you need to be sure you have set aside an equivalent to 6 – 12 months’ salary.
16. Do set up your accounting package – Keep all receipts as you are setting your business up because all of this can be claimed against tax at the end of your first financial year and expenses that have GST attached to them can be reclaimed if you register for GST but make sure you regularly review your accounting  End of financial year stress is easily prevented with ongoing account keeping.
17. Separate your personal and business bank accounts – Because it really is a whole lot easier to account for everything. 
18. Prepare for hard work – Starting a business requires a lot of your time- much more time than the hours of operation.
19. Do outsource administration tasks if you can – If you are going it alone running the business and carrying out all tasks such as accounting, answering the telephone and emails, marketing your business etc takes time and really you should be concentrating on what’s going to bring in the cash. So if you can plan to outsource admin tasks to others who can take this time burden away from you then do so.
20. Prepare your terms and conditions -  Know what your terms of trade will be both with suppliers and customers.  A well prepared set of terms and conditions can save months of heartache and of course lost revenue.  If you don't know why you need to consider Terms and Conditions, check out my article on the subject.
21. Don’t just set up your business and wait for customers -   Your business plan should include a marketing strategy.  You will HAVE to market your business.  If you are good at marketing then you’ll have no problems but most people don’t have these skills so get professional advice if you can or ask others how to get customers to your business.
22. Have fun! - Really!!  You are doing what you always wanted to do and giving it your best shot.  What happens next, is up to you.

​It’s estimated that on average people under the age of 50 will spend the last 3 years of their lives in residential aged care with the present aged population spending between 1.5 years to 2 years.   But who should fund this?

Not everyone will spend time in a rest home, but if they do the cost is high with a current estimated average of up to $80,000 being spent per occupant.

In New Zealand, the obligation to pay for rest home care has been means tested so that the taxpayer only covers the cost if the person needing care is judged to be poor enough to get Work and Income's Residential Care Subsidy.

The maximum subsidy for ordinary aged care is just over $1000 a week showing what a person can expect to pay as a base level if they don’t get the subsidy.

It’s been a feature of Estate planning for some years now to use family trusts, and gift away assets to descendants, to try to keep wealth in the family, and achieve relief through the Residential Care Subsidy if Rest Home Care is required.

But with growing public funding concerns surrounding an increasing life expectancy and a growing, aging population, the means test is becoming harder to meet and however carefully your estate plan is carved, it is getting more difficult to beat the system.

Work and Income is on the lookout for people who have "deprived" themselves of assets and income, and are quick to deny subsidies to people who've done it.

The way Work and Income approaches the means test is complex, so it’s important  to get legal advice before trying to protect  assets and in any event as early as possible before the need arises to approach Work and Income with an application. 

WHAT IF YOU ACT EARLY?

Acting early to protect assets would be my number 1 recommendation.  If you're looking to rearrange your assets because you are likely to go into care in the next few years, it could be too late. 
The longer that a trust has been in existence, and the longer the period between the financial gifting and the time you apply for rest home subsidy, the more likely that Work and Income won't take the gifting into account when calculating your wealth.

ASSET DEPRIVATION

As far as Work and Income is concerned, its mandatory to include gifts made in the five years before someone applies for subsidy when they calculate the asset means assessment so, paying for a granny flat to be added to your children’s home during the five years, for example, needs to be carefully documented as such an arrangement would come under very close scrutiny.

During the 5 year period,  people can give up to $6500 away each year, and it will not be included in the asset means testing.  Outside the 5 year gifting period, people can gift away up to $27,000 in any one year.

But even "allowable" gifting can still result in failing the means test.

INCOME DEPRIVATION

The effect of shifting property into trusts is to "deprive” yourself of assets.  If those assets are income earning assets then Work and Income may form the view that you have deprived yourself of  income that would have been available to help pay for care.

In effect, while there is "allowable" gifting of assets, there is no allowable gifting of the income that can be earned from those assets.
​
When it comes to income, people entering aged care are allowed to keep only a weekly personal allowance from their income, plus an annual clothing allowance.  The rest of their income goes to help pay the rest home bill, and reduces the subsidy Work and Income will pay.
There are rules about what income is counted in the test, but it equates to roughly everything for a single person, and half of the income of a couple where one is not going into care.

ASSETS OWNED SEPARATELY

Couples may argue that assets are not co-owned, but Work and Income is unlikely to accept that argument.
Even if the partner regards his or her assets as their own separate property, they are still included in the means assessment.
Even so called 'pre-nup agreements' can be ignored.  If subject to a Property (Relationships) Act 1976 agreement, then separate property assets will still be taken into account unless the couple have separated (bona fide).

WHO PAYS IF NO SUBSIDY IS GIVEN

If the subsidy application is declined, family or family trusts will have to pay.  This use of funds may be inconsistent with the terms of the family trust, thus opening a whole new can of worms. 

THINGS TO WATCH OUT FOR IN ASSET PLANNING

While every single case is reviewed on its own merits, arrangements  Work and Income are unlikely to accept, include where people:

• re-arrange their financial circumstances after being notified of a decision by Work and Income.
• don't receive income from loans made to others, for example, lending a child money to buy a house but not charging interest.
• sell a house for less than market value to a family member or a family trust.
• make large cash gifts to family.
• change the nature of ownership of land where there is insufficient reason for the change.
• do not seek income from the family trust to which they had transferred their assets.
• disclaim an inheritance.
• appear to have significant investments or financial arrangements that are structured and managed in a way that they do not receive income.

There may be no way around making a contribution to yours or your family’s residential care but if you want to know if there is in your circumstances get legal and accounting advice as soon as possible.

There are many circumstances where you need to get your story down in writing for legal purposes. These can include making statements to police, governments and authorities or preparing for court. Broadly speaking, statements for legal purposes are called “statements of evidence”. Some times these are made by way of Declaration and some times by way of Affidavit. The formal requirements for Statements of Evidence can be different depending on the purpose. These guidelines give a broad overview of how a Statement of Evidence can be written.

Getting Help

Depending on the purpose of your statement there will be specific evidence you must include in your statement. You can get help in working out what that specific evidence is by checking information available on line for example, at www.communitylaw.org.nz or www.cab.org.nz or by having an initial consultation with a lawyer.

The Golden Rule

Give yourself enough time and put the effort into getting it right.

Statements of evidence, even for lawyers, take many drafts. You need to spend time in making them as clear as possible because the clearer and more concise your statement is, the more persuasive it will be.

Computer drafts are the best way to go because it is easier to make changes.  If you do not have a computer, you should try and get a friend or family member to help you.  Also, many community service centres allow you to book or use computers. 

Structure

Courts have their own special form for Statements of Evidence but essentially the format is generally the same and is quite logical. Numbering your paragraphs can make a Statement of Evidence easier to refer to when talking about it. By numbering paragraphs you can say, “at Paragraph 21, I talk about the second incident”, for example.

​Beginning  

This sets out who you are, where you live and what you do.  It should also set out your relationship to other parties that you refer to in your evidence and needs to state your qualifications if you think that is relevant.
Example
I, Joseph Bloggs, of (street address) Town, New Zealand, employment title, make oath/affirm and say as follows:

Main body 
This sets out the facts and evidence you rely on. Try to set out your Statement of Evidence in chronological (date order from first event to last event) form.

Example
1. I am the applicant/respondent in these proceedings. (ie why are you involved in the proceedings)
2. On x I was telephoned by, the applicant/respondent to these proceedings, asking me to provide a quote for services.
3. On y I provided a quote for my services.
4. On z the applicant/respondent contacted me and ask me to do the work in my quote.

It makes sense to set your Statement of Evidence under sub-headings. Keep those facts in chronological order under each sub-heading.

Example
“First Incident”

What should a statement of evidence contain?
A statement of evidence should set out direct observations of matters or statements you believe to be true.
Example:
“K approached me waving a fist in my face and K was very red in the face and shouting. There was nobody else around. I felt afraid."

This is acceptable because it records  direct observations. It could be used to persuade the Decision Maker that the person’s actions were “threatening” – notice the word ‘threatening’ is NOT used because that is an opinion (see below)!

What Shouldn’t A Statement of Evidence Contain?

Statements of Evidence should not contain opinions.

Example
“K approached me in a threatening way”.

This is an opinion. The meaning of the word “threatening“ is not clear and may mean different things to different people.

Statements of Evidence should not draw conclusions based on observation.

Example
"these actions showed that he wasn’t ever going to pay for the work done”

Statements of Evidence should not summarize in a general way things that have happened.

Example
“Z was always evading me.”

This summarizes actions rather than describes direct observations.

A better way to say the above would be:

“On x I approached y for payment. He said, “I will pay you next week”. And repeat for each incident.

Statements of Evidence should not contain hearsay. Hearsay is what another person told you,  you did not see it yourself.

Example
“Peter said to me “I saw Paul leaving the building site yesterday with a stack of gear in his truck”.

The reason Hearsay is not usually acceptable is because the person who made the statement is not present to be tested as to the truth of that statement.

In the example above, the statement of what Peter said is not evidence of Paul leaving the site with gear in his truck, it is just evidence of Peter saying it.  If Peter saw something important that can help your position, you should ask Peter if he will sign his pwn statement.

There are exceptions to hearsay. A lawyer can assist you with your statement if you feel you need to include hearsay and do not know if you can.

The value of Independent and Documentary Evidence

Most Statements of Evidence will have attachments. Attachments may include documents such as extracts of emails, text messages, letters, invoices, quotes, proof of receipts and expenditure, telephone accounts that show the numbers called. Basically anything that helps to prove what you are saying is true. Documents are often called “best evidence” because if shown to be genuine, they are very persuasive.

If you want friends/colleagues to write Statements of Evidence, you will probably have to draft something for them too, so don’t forget that when you are planning your time to write Statements of Evidence.

If you would like to have your evidence and statement reviewed by a lawyer don’t hesitate to contact us. We are happy to provide assistance by either reviewing your documents online/by email or by sitting down with you one on one to talk you through it.

​This "How To" Series Guide helps to explain the steps involved in reaching settlement.  You are reading Part 3 of 3 parts.  If you would like to read Part 1 click here or Part 2 click here.

Step 2 - Negotiating
Parties negotiate directly or through their lawyers. This can be done at meetings or through email or letters.  Where the relationship pool is not significant, I recommend people try to negotiate between themselves first to save legal fees.

Parties may also wish to have mediation, which means a mediator will facilitate the meeting.

If parties choose to mediate, it may be a good idea to each seek legal advice first and get a letter of advice, which summarises the facts of their case, the strengths and weaknesses of their claims, the options available, and the likely outcomes.

If parties choose to negotiate through their lawyers, this is usually done by way of a round table meeting.  

Round table meetings can be an effective way to resolve relationship property matters where the parties are willing to engage in discussion in person through their lawyers.

Some key tips for negotiating on Property distributions

1. The starting point is generally 50/50 based on what the Act says but there may be extraordinary circumstances which change a party's entitlement.
2. The biggest issue is usually working out what is relationship property and what value to give to it. Valuing items is a difficult process.  What you paid for items is not their current value.  Check what similar items are selling for
3. Consider agreeing to have an expert value items if you can't work out values between you.
4. This is no time to be punishing or blaming each other.  Try to keep your thinking as clinical as possible. Remember each of you will have a different way of looking at things.
5. Conflict is a normal part of life.  The key is not to ignore conflict but to resolve it in a safe, productive and efficient manner.
6. Listen.  Take the time to really listen to what the other person is saying. Ask questions. Make it your point to really understand what he or she is saying and why. You don't have to agree with them.  If you have a response, think about whether your response will help to reach agreement.  You are not trying to convince the other party you are right.  You are trying to achieve the result of agreement.
7. Looking back.  Pretend that you are looking back at your separation from 10 years in the future. What would you like the process to look like?

Step 3 – Agreement
Where a resolution is reached through negotiation, the final agreement must be signed and certified by the parties’ lawyers. The Agreement will usually contain standard clauses such as the following (examples only):

• full disclosure clause - where the parties confirm that they have told each other the truth about their financial circumstances;
• independent advice and freedom from undue influences clause - where the parties say that they have made up their own minds to reach the agreement;
• disputes resolution clause - where the parties agree to the way they will resolve any future disagreements about implementing the Separation Agreement;
• review clause - where it is agreed to review the agreement within an agreed number of years so that the agreement can be more able to deal with any changing circumstances such as children growing up; and
• Counterparts clause - where the parties agree they can sign the agreement at separate times in separate places. 

Step 4 – Settlement (After Agreement)
There will still be legal and financial steps to take to give effect to a Separation Agreement.   When you sit down with your lawyer to receive advice on your proposed terms of settlement, it's a really good idea to ask them to help you prepare a list of what will need to be done.

​What sort of documents should be disclosed?

Examples of standard documents to provide or request include:

• Bank account statements, whether separate or joint;
• Company annual statements;
• Trust Deed, including any amendments or variations;
• Payslips for the relevant period only;
• Shareholder certificates; and
• KiwiSaver or Superannuation Statements.

How much information can you ask for in the disclosure step?

The main principle is that items for which disclosure is requested must be relevant, tailored and focused to the parties’ relationship property, keeping in mind that the law requires that disputes must be resolved as inexpensively, simply and quickly as possible.

Court cases show that reasonableness and proportionality are key considerations for any request for disclosure.  Therefore, a party may not need to hand over requested document if the documents are not reasonably relevant to the case or it is overly onerous to provide (e.g. very expensive and time consuming to put together in light of its relevance).  Parties need to seek material in an expeditious way and where such conduct becomes oppressive it may lead to a Court concluding “enough is enough”.

What if there are delays in disclosure?

On average the process of settlement can take between three to six months. If there are delays with providing or obtaining disclosure, it can take a year or more. 

Step 1 can often cause delays in the settlement of relationship property especially when parties are not forthcoming with information.  We can help clients avoid delays by proactively managing requests for information. 

​This may mean applying to the Family Court where one party has concealed information and misled the other party in relation to the true extent of relationship property.

To learn more about the next two steps, please subscribe by clicking onto the RSS Feed to the right of this post.

INTRODUCTION
The Property (Relationships) Act 1976 provides for how property of married couples, civil union partners and de facto couples is divided when a relationship ends (including by breakdown or death).

When a relationship breaks down, relationship property disputes can be settled in two ways -  either by agreement between the parties or through the Family Court. 

Settling relationship property matters by agreement means the Family Court is not involved and parties come to an agreement themselves with or without the assistance from lawyers.  Settling by agreement is far more effective in terms of time and money than the Court process.  For these reasons I just about always encourage my clients to use this method if they can.

This is part 1 in a 3 part series to help explain the steps involved in reaching settlement and give you some tips to move forward.

4 STEPS TO SETTLEMENT
There are four key steps involved in settlement: 

• Step 1 – Disclosure / Information Gathering
• Step 2 – Negotiation
• Step 3 – Agreement
• Step 4 – Settlement

Step 1 – Disclosure / Information gathering 
This step allows both parties to establish the total relationship property pool and create a list of assets and liabilities.

When you think about it, it makes sense that meaningful negotiation can't start unless both parties know what they are dealing with and have a full understanding of the details of what is in their relationship pool.  This includes knowing what property is considered relationship property and what the value of the relationship property is.  It can sometimes be hard to get the ball rolling on Step 1 and people tend to want to skip it thinking that it will just cause trouble.

From a legal perspective, without full disclosure, there is a real risk that whatever the parties agree to in negotiations will be challenged and set aside by the Court in the future.  This could occur for example if it is later discovered that one party had hidden financial information (non-disclosure). Non-disclosure can lead to further legal costs and delays for both parties. 

How to start the ‘disclosure’ process?

It is often best to confirm the start of this process in writing with one party requesting from the other party financial information or other details in respect of relationship property.  You can do this using a lawyer, with the help of a lawyer checking your letter or on your own. 
 
What “relationship property” covers

Relationship property covers things of financial value that were gained during the relationship. It can include:

• the family home and contents (but not taonga or heirlooms), other land or buildings and vehicles
• salary or wages earned during the relationship, insurance payouts, superannuation you received, rents and other income from joint property
• any property gained when you were in the relationship or that you had both intended for both of you to use
• non-personal debts (your personal debts are your own responsibility)
• gifts or inheritances that have become mixed with relationship property
• property you both agree is relationship property
• increases in the value of relationship property, income from it or the proceeds from the sale of it.

But what sort of documents can you request and what is the extent of disclosure that can be required? 

​These issues are explored in Part 2 of this series, so if you would like to know more, subscribe by clicking on the RSS Feed on the right.

Have you ever walked out in a daze after meeting with a lawyer?  Was it English they were speaking?  What was it they actually said about your problem?  Was the only thing you understood, “Don’t worry, we will take care of it for you”, and then with confused relief you left your legal problem in their hands. 
​
A few weeks later you get the bill but you still don’t really understand what work has been done AND why are you paying for photocopying and meetings and phone calls?

Well, the law is pretty complicated.  There’s no doubt about that.  It’s not always easy to navigate, and often only an experienced lawyer will know the best strategy to help you reach your goal.  And, yes, paperwork is generated, even in my paperless office there is photocopying to be done. Meetings, research, reviewing documents and phonecalls are also vital tools of our trade.   

And, yes, the traditional model is we do take care of you and you pay us to do that - we can try to keep our fees down but the analogy might be, you are flying first class, with all the tinsel and trimmings and not a care in the world (but for the bill).

But can’t there be a different way?  What about those who prefer to, or simply have to, fly economy so to speak.

​​In my article of 7 December 2018 I talked about preventative law. This article is about an approach to law that is equally exciting.  Around the world, it's called “Unbundled Law”, also known as limited scope or discrete task representation.  Unbundled Law is where the lawyer and the client make an agreement to limit the scope of the lawyer's involvement in a legal matter down to specific tasks.

The New Zealand Law Society* explains the potential benefits to clients in using Unbundled Law as: 

• Increased access to justice. Many people can afford to pay something, but cannot afford the full representation approach.
• Expert legal assistance that can help a client navigate a system that is often complex and difficult for a lay person to understand.
• Clients are empowered. They have more control over their own legal affairs, and can exercise control over those parts of the file they feel comfortable handling.
• Price predictability.
• Greater ability for a wider section of civil society to access the justice system to resolve their legal disputes or issues.

Apart from cost savings, which can be significant, the biggest benefit I have seen is that  people are actually empowered.
 
It simply stuns me the number of people who do not know what their legal documents say or do - and in some cases don’t even have a copy! 

As for court cases, if you don’t know what your legal case is about how can you possibly make decisions about what to do next in it when you are asked by your lawyer for “instructions”?

An important point to make is you don't have to compromise quality with Unbundled Law, because ALL lawyers have professional obligations to their clients that are closely monitored and nowadays it's easy to do some homework and find out about your lawyer's experience and skills - just as you would with any other potential service provider.

There’s no doubt some people will always prefer the traditional legal model and thank goodness there are some great law firms in the region providing those services but more and more people are taking on assisted “DIY Law”.  

At Comer Legal, we have developed a fixed fee framework so that clients can get the assistance they require as they require it.  When work is completed, the client takes home all their own original documents for safekeeping or lodging – thus keeping control over their own legal matter.  Electronic copies are kept by us and also provided by email to the client if requested.  If we decide that a client might not be the right fit for Unbundled Law, quality referrals are made to traditional lawyers.  

The key to the success of professional services is YOU the client.

More and more your choices matter when it comes to how  services are delivered and that’s why Unbundled Law has a very important role to play right now and in the future in helping people access justice.