27 July 2000
Changes in the air...
Welcome to Caudwells newsletter for July 2000. These articles will help you keep up with some of the
many changes in the law.
Firstly, what's new at
A busy time for our employment team. You may have heard that Peter Churchman has moved to Wellington to
take up another position. Peter's clients are being looked after by partners Frazer Barton and Jenny Beck, associate Lesley Brook and
solicitors Malcolm Couling and Hamish Peart.
The employment law team is busy assisting clients in a wide range of
employment law issues, including preparing for the Employment Relations Bill which is expected to come into law from 1 October
2000. This will have a major impact for many people.
Welcome to a new team member Caudwells welcomes our new solicitor Helen Scott to partner Frazer
Barton's civil litigation team.
What's happening with legal aid?
The government is revamping the legal aid scheme and we expect the new regime to come into effect on 1 October 2000. This is likely to
see the establishment of the "Legal Sources Agency", a government agency responsible for making decisions on eligiblity for legal aid
The revamping may change the level of involvement Caudwells and other law firms have with legal aid.
Real is for real
Caudwells Lawyers in Dunedin has joined many other law firms around the country in offering a new service to our clients.REAL will make the task of selling or buying your home much easier.
As outlined in the enclosed REAL brochure, Caudwells can help you sell your home, or buy your new home, through our close association
with REAL Ltd MREINZ, a completely new real estate company. You can expect lower real estate commissions, independent valuations and
reduced legal fees when you sell your home through REAL Ltd MREINZ.
This is explained in moredetail in the brochure. When buying or
selling your home or for further information, contact your Caudwells lawyer.
Accident Compensation payments
Caudwells acts for many clients who have suffered injury by accident and are concerned they have not been receiving their rightful level
of ACC compensation. In several cases this year, Caudwells have been successful in
securing significant major lump sum payments from ACC. Caudwells
specialists in ACC are based in our Dunedin office.
The death of the cross-lease?
The Law Commission recently recommended all existing cross-lease titles be converted to freehold (fee simple) titles or unit titles
within 10 years. There are thousands of cross-lease titles in the Dunedin and
Christchurch areas. Before the early 1990s most ownership flats, and properties resulting from 'infill housing' subdivisions, were created
on cross-lease titles.
These titles have always had a significant disadvantage. The title
is based on a Flat Plan defining the external dimensions of the dwelling and improvements (garages or carports) as originally
constructed. If the external dimensions are altered or further improvements are erected on the property, a defect in title arises.
Rectifying the defect involves a resurvey and legal costs.
This often results in sale contracts collapsing or being delayed, or in a seller having to correct the defect.
In our view owners of existing cross-lease properties should
consider converting their titles now. Real estate agents believe the money spent on the process may be recovered on a sale of the property
simply because of the superior title. The consent of all owners in a cross-lease subdivision would be
required, and costs would usually be shared. We would be happy to discuss the process with you.
Where there's a will...
Warwick Deuchrass, Partner and
Greg Fahey, Solicitor, Dunedin
No one really wants to contemplate his or her death; that's human nature. But if you don't have a Will or your Will isn't up to date,
you risk having your estate distributed in a way you don't intend at the time of your death. People you want to share in your estate may
miss out, and people you want to exclude, may benefit.Basically, until you die you are free to revoke or alter your Will as
you like. Upon your death, your Will crystallizes and directs how your estate and affairs should be handled.
If you die without a Will, however, the Administration Act provides a
fixed formula for the disposition of your estate. Your Will might provide for the following matters:
- Who will manage your estate;
- Who will be guardian of your children;
- How your property will be disposed of and to whom;
- Your funeral arrangements.
While people can generally organise their affairs on death as they
wish, the provisions of a Will can be challenged. It is important to appreciate this and to be aware that steps may be taken to ensure
your wishes are not upset. Ways in which your Will might be opposed include:
- A claim under the Family Protection Act - a select class of family members are
entitled to challenge a will on the basis that the will does not make adequate
provision for their "proper maintenance and support";
- A claim under the Testamentary Promises Act - a person may claim against an estate
on the basis they have provided services to the deceased in return for a promise by
the deceased during his or her lifetime that those services would be recognised
on his or her death;
- Inter vivos disposition - even though property may be specified in a Will, it may
not legally form part of the estate on death. Basically, dispositions of property in a
Will are subject to the earlier disposal of property by the deceased during his or
Claims under the Family Protection Act are not uncommon. They may
only be brought by the spouse, children, step-children, grandchildren and parents of the deceased.
As for what constitutes "proper maintenance and support", this does not refer only to "economic need" of family members. The court has
recognised that proper support may be due to family members as members of the family and the assistance and support they provided
to the deceased during his or her lifetime. Much will depend on the size of the estate, the relations between all the parties and their
respective asset positions.
Should you have specific intentions in terms of how you wish
your estate to be distributed, or if you own sizeable assets, the prospect of having your Will challenged should be addressed. The
most effective way of doing this is through an asset plan. In addition to your Will, this involves adjusting ownership of assets
and/or the formation of a family trust. An asset plan provides greater certainty in terms of how your estate
will be distributed.
Caudwell's offers clients a free Will preparation service. On
meeting to prepare your Will we would be pleased to discuss the possibility of asset planning with you.
Personal Property Securities Update
Doreen Evans, Solicitor, Dunedin
The Personal Property Securities Register is due to commence in the second quarter of 2001. The electronic register/noticeboard will
display all registered security interests over personal property.
All information required will be entered into a financing statement and submitted for registration on-line through the internet. The
information required has not been finalised as yet but is likely to
- The name and address of the secured party (e.g. ANZ Bank);
- Where the debtor is a person, the name of each debtor and their date of birth;
- Where the debtor is an organisation, the name of the organisation and its
- The debtor address;
- A collateral type;
- A serial number(s) for each item where the collateral type requires a serial number
to be added (e.g. motor vehicles).
The maximum term for the security registration is five years. The term can be renewed at any time prior to the expiry date. We will
keep you informed of developments in this area.