Planning for the future isn’t just something to think about later in life—at KT Law, we believe that having a Will is crucial for every adult, no matter their age or current financial situation. As your KiwiSaver balance grows and your assets increase, it’s important to have a plan that ensures your wishes are protected and that your loved ones are spared unnecessary stress and costs.

Many people believe, “I don’t own much, so I don’t need a Will.” But this is a misconception. Even if your assets seem modest now, your KiwiSaver could accumulate substantial value over time. Without a Will, accessing these funds can become a complex and stressful process for those you leave behind. Banks often require a Will and probate to release funds, and without these, your loved ones might face delays and legal expenses that could diminish the value of your estate.

A Will isn’t just about managing your current assets—it’s about safeguarding your wishes in the face of life’s uncertainties. Life can change quickly, whether through career advancements, relationships, or other significant milestones. By having a Will, you can ensure that your assets are distributed according to your intentions, avoiding the potential complications that arise when there is no clear direction.

At KT Law, we emphasize that Wills are not just for the elderly—they’re for everyone. Creating a Will is a proactive step that allows you to take control of your future. It’s about making sure your voice is heard and that your assets are handled the way you want, no matter what happens. More importantly, having a Will in place can spare your loved ones from the emotional and financial burden of navigating the legal system without clear Instructions.

As your financial situation evolves, it’s important to keep your Will updated to reflect any changes in your life. This ensures that your wishes remain current and that your loved ones won’t have to face the challenges of sorting out your estate without guidance.

Don’t wait until it’s too late. If you don’t have a Will in place, contact KT Law today. Let us help you protect your wishes and save your loved ones from unnecessary stress and costs.

Disclaimer: The content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose.  We do not give financial, taxation or investment advice and nothing in this article is intended as such.

Dying without a Will in New Zealand can cause your family quite a headache! Without a will your Estate is divided arbitrarily in accordance with the Administration Act 1969 (“the Act”). You lose the ability to control who should inherit your assets – which are collectively referred to as your Estate. Families often look different today to how they did in 1969. The Act is useful as a last resort, but it doesn’t take into account your wishes, the intended passage of family heirlooms, the differing relationships you have with loved ones, and any charitable gifts you may wish to make.

Your next of kin will be required in most cases to apply to the Court to administer your Estate either way but there are additional steps and requirements when you don’t leave a Will. Instead of a Grant of Probate your next of Kin (who may not be who you would appoint to administer your Estate would be required to apply for Letters of Administration. An application for Letters of Administration requires a thorough search for any Will you might have made and searches for any additional beneficiaries. These both mean extra costs for your Estate. Once the application is granted the applicant is then referred to as your Administrator. The Act specifies that if you are survived by certain relatives they inherit in a listed order of priority and often receive a set share of your Estate. Your Administrator has no choice. This can lead to disagreement between family members. One instance where such arbitrary division can cause an issue is where you are survived by your spouse and children. Generally, in that case your spouse receives your personal chattels, and a prescribed share of your Estate, while your children receive the balance. This can be hard on a surviving spouse who then has to forgo a share of your assets that would otherwise have supported them during your life. That share of the assets is then required to be held for your children if they have not yet reached the age of majority. This can create complicated scenarios where not all assets are jointly owned.

Something many people do not realise is that if you die intestate with no surviving relatives your Estate is given to the Crown – the New Zealand Government. In light of this, many people might prefer to leave their Estate to a friend or a charity, where they feel it could do good.

Ultimately, dying without a Will leaves you and your family with no say in how your assets are shared between them producing a result you may not have intended. All of this can be avoided by making even a simple Will which can reduce the stress for your family at an already challenging time.

Disclaimer: The content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose.  We do not give financial, taxation or investment advice and nothing in this article is intended as such.

When we think about Enduring Powers of Attorney (EPOAs), many assume they’re only necessary later in life. However, at KT Law, we emphasise that EPOAs are crucial for everyone, regardless of age. Life is full of unexpected events that can lead to a sudden loss of mental capacity, making it essential to have an EPOA in place. Whether it’s a sports injury, a car accident, a serious illness, or even a medical condition like a concussion or brain injury, an EPOA ensures that your affairs are managed according to your wishes if you’re unable to make decisions yourself.

Consider the activities that many younger adults engage in regularly—contact sports,

extreme sports, or even high-risk hobbies like rock climbing or mountain biking. These

activities, while exhilarating, carry the risk of serious injury. A severe concussion, spinal

injury, or other trauma can result in temporary or permanent loss of capacity, making it impossible to manage your own affairs. Similarly, car accidents, which can happen at any age, are a leading cause of traumatic brain injuries that might leave you unable to make decisions for yourself.

An EPOA allows you to appoint someone you trust as your Attorney, giving them the legal authority to make decisions on your behalf when you’re not capable of doing so. There are two key types of EPOAs: Personal Care & Welfare, which covers decisions about your health and wellbeing, and Property, which deals with your financial matters, such as managing your assets, paying bills, and handling any business interests. Choosing the right person for each role is crucial, as they will be responsible for making important decisions that impact your life.

It’s not just about the immediate risk of injury; unforeseen medical events, such as a sudden

illness or a stroke, can happen at any age. These situations can leave you mentally incapable

and unable to manage your own affairs, highlighting the importance of having an EPOA in

place. With an EPOA, the person you trust most is empowered to act on your behalf, ensuring your wishes are followed.

Furthermore, you can appoint successor Attorneys to step in if your primary choice is unable to act. For example, if you initially appoint a parent as your Attorney but they become unable to fulfil the role, a successor Attorney can seamlessly take over, ensuring there’s no interruption in the management of your affairs.

It’s important to remember that an EPOA is not a permanent, unchangeable decision. You

can update or create a new EPOA at any time while you have the mental capacity to do so.

This flexibility means you can adjust your EPOA as your circumstances or relationships

change, ensuring that your wishes are always respected.

At KT Law, we urge you to take this proactive step to protect your future. If you don’t have

an EPOA in place, or if you’re unsure whether your current arrangements are still suitable,

contact us today. Let us help you ensure that your affairs are managed by someone you

trust, no matter what life throws your way.

Disclaimer: The content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose.  We do not give financial, taxation or investment advice and nothing in this article is intended as such.

Separating from your partner will not change the contents of your will unless there is a separation order under the Family Proceedings Act, or an order dissolving your marriage from the Court.

On the dissolution of your marriage, your will remains in force, but will be interpreted as if your former spouse had predeceased you. This means that they will not be able to act as your executor or trustee, should they have been appointed, and that any gifts made to them will fail and be unenforceable. Although there might be some security in this, a marriage cannot be dissolved until after two years of separation. If your will has not been updated upon your separation, your former spouse may still be able to benefit from your estate. We would advise against waiting for a dissolution instead of revoking the will entirely, as navigating a distribution in these circumstances is a complicated process and can be very costly for the Estate.

For de facto relationships, there is not the added security of the dissolution, so without your will being updated, your ex-partner could benefit from your estate and be the one to administer the assets. The easiest way to ensure an ex-partner is not to receive any benefit under your will is to update your will as soon as you separate to ensure your wishes are reflected, and the previous will which includes your ex-partner is revoked.

In both situations, whether your relationship which has ended is a de facto relationship or a marriage, if you have children, updating your will ensures that you will be able to provide all that you wish for your children, and the distribution of your assets to them will not be contested or reduced by any previous partner benefitting from your estate, or claiming that they have an interest.

It is important to note that in cases where partners own assets as joint tenants (as opposed to tenants in common), the laws of survivorship will take precedence over any beneficial interest provided for in a will. This is especially common with houses. When a spouse or partner dies and there is property owned as joint tenants, the survivor will automatically inherit the deceased’s interest through “survivorship”, and the asset or assets will not form part of the estate.

If you have separated from your partner and have not updated your will, please come see us to discuss your proposed division, your assets and liabilities, and how we can best protect you and your estate.

Disclaimer: The content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose.  We do not give financial, taxation or investment advice and nothing in this article is intended as such.

If you made a Will prior to your marriage taking place, you will need to check the contents with us to see if your will is still valid, or if a new one will be needed.

The standard procedure is that any will made prior to the advent of a new marriage or civil union, will be automatically revoked. Should you not make a new will after marriage, you will die “intestate” as none of your previous wills were ever in existence, and the Administration Act 1969 will determine how your estate is to be distributed.

Wills are important documents which allow for you to determine who you would like to receive your assets and personal belongings after you die. Without having a valid will at the date of your death, you will not have a choice as to this distribution and legislation will decide this for you.

A way around this if you are updating your will prior to your marriage, is to specifically state that the will is made in “contemplation” of the particular marriage, noting the name of your partner/fiancé within the clause. The inclusion of this clause will mean that the marriage will not revoke your will, and it will remain in place thereafter.

If you are unsure about whether your will remains in place following your marriage, please contact us to review your will and update this if required. If you are planning on getting married in the future, upon updating your will please let us know of your pending marriage and we can ensure the will is drafted in contemplation.

Disclaimer: The content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose.  We do not give financial, taxation or investment advice and nothing in this article is intended as such.

The Incorporated Societies Regulations 2023 (Incorporated Societies Act 2022) are now in force.

All existing incorporated societies have until 5 April 2026 to re-register, after which they will cease to exist.

What do the Regulations affect?

The new regulations are relevant to all existing societies incorporated under the 1908 Act who wish to remain an incorporation. The existing society will need to re-register under the 2022 Act. Any new Society (from 5 October 2023) will need to be incorporated under the 2022 Act.

How do the Regulations supplement the 2022 Act?

The Regulations set down the processes for a few of the more administrative and procedural matters in the 2022 Act including:

• How societies apply to register or re-register for incorporation.
• What information is required for registration including changes to society details, annual returned etc
• The cost for registration and restoration
• What information and actions are needed to administer an incorporated society.
• How enforcement and removal is actioned.

Re-registration – how will it work?

Under the 2022 Act, societies will need:

• To provide a constitution which is compliant with the Act.
• Dispute resolution procedures need to form part of the constitution.
• The requirement for a committee that is responsible for managing the operation and affairs of the society.
• At least ten members are required with at least one of those members having their contact details provided to the Registrar.

An online registration form is available through the Companies Office website once the information above has been agreed upon through a general meeting of the society. There is no re-registration fee payable. There will however ben the need for the application to be supplemented with certain information, including:

• The registered office address.
• The New Zealand Business number and registration number.
• The names, addresses and written consents of each person named to be an officer. There will need to also be a certificate, from each person, confirming that they are not disqualified from being elected, appointed, or holding office.
• There needs to also be confirmation that a named officer considers the society to have ten or more members.
• A copy of the new constitution which the named officer considers to be compliant with the 2022 Act.

https://is-register.companiesoffice.govt.nz

Disclaimer: The content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose. We do not give financial, taxation or investment advice and nothing in this article is intended as such.

For many decades the backbone to a kiwi family’s retirement plan was to own a rental property or
properties. In some cases, the properties have been bought with no money down, having leveraged
again equity in their own homes. For the last decade or so, successive Governments have had
political pressure applied to make housing more affordable. The main tool used by all main political
parties has been to made rental property investment less attractive and encouraging investments in
other areas.

The test is a way of assessing whether tax is payable on any profit made on the sale of a residential
property in New Zealand.

The current Government has made changes to Brightline test which is to come into effect on 1 July
2024.

The Brightline Test for residential property, from 1 July 2024 will be reduced from 10 years to 2
years. This means that you only must pay tax on any profit made on a sale on properties owned for
less than 2 years unless an exception applies. This applies to all properties so properties with a 5- or
10-year Brightline period will be reduced to 2 years.

The exceptions to Brightline are main homes, separation/relationship property transfers, some
transfers to trusts, and receiving a property via an estate will remain in place.

Disclaimer: The content of this article is general in nature and not intended as a substitute for specific
professional advice on any matter and should not be relied upon for that purpose. We do not give
financial, taxation or investment advice and nothing in this article is intended as such.

This is a complex and specialist area covering the circumstances in which individuals can qualify for assistance from the government to pay for the not inconsiderable rest home fees that can be involved where a person is living in a rest home or indeed receiving constant hospital care in the hospital wing of a rest home.

While there are existing policies which determine eligibility, one must have an open mind to the fact that with the ageing population and the increased number of people going into home or hospital care there are going to be financial issues of affordability in the future which have not yet been fully canvassed. Therefore, while this article endeavours to state the government policies, these are only the policies in existence now and will almost certainly change in the future.

People who:

• Don’t have a partner, or
• Have a partner who is in long-term residential care.
• Must have combined total assets valued at $284,636 or less to qualify.

People who:

• Have a partner who is not in care can choose a threshold of:
• Combined total assets of $155,873 not including the value of their house and car, or
• Combined total assets of $284,636 which will include the value of their house and car.

Please note:  asset thresholds are adjusted at 1 July each year with the next adjustment due 1 July 2025 and that the house is only exempt from the financial means assessment when it is the principal place of residence of the partner who is not in care or there is a dependent child.

As a person cannot apply until they meet the criteria tests mentioned above, it is important to keep a close eye on the asset total in either category to ensure that an application is made at the correct time and a Funeral Trust established if considered appropriate. If the application is not made soon enough, then the WINZ subsidy cannot be backdated. So, for example, if it was left until the assets in the second case totalled $100,000 and even though the threshold was then (say) $200,000, WINZ would only start paying from the point that the application has been made; they would not make any compensation for the money that had been spent between $200,000 and $100,000.

WINZ are very well informed about the role of trusts in the lives of many people applying for a rest home subsidy. They will scrutinise very carefully the history of any trust including in particular the reasons for setting up the trust. If they consider the reasons were valid then the trust assets may be excluded from the personal assists, but WINZ may still look to any income that the trust is earning as a contribution towards the rest home payments. This is very important to understand as many people set up trusts because it was then customary to do so, and they may not now be the panacea they were initially thought to be in this context.

Disclaimer: The content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose. We do not give financial, taxation or investment advice and nothing in this article is intended as such.

Inheritances and Relationship Property

Have you inherited some money or you are about to? Should an inheritance be shared with your
Partner or kept separate? If you are in a relationship and inherit money, you need to consider
whether you want it to become relationship property, or whether you want to recover it in the event
of separation.

The Law does not require someone to share their inheritance with their partner. Some people could
not imagine not sharing and some might want to protect the inheritance for themselves.
Under the Property (Relationship) Act property an inheritance is separate property, but for it to
remain so, it must be kept separate and isolated from other assets. The only way for it to stay
separate is:

● Not to apply any of the inheritance for relationship purposes. If you keep the inherited
property separate and do not apply it towards or intermingle it with, relationship property,
then it will not lose its character as separate property. Intermingling of funds could be by
way of paying off a relationship debt or a promise to the other person that the funds would
be used for the benefit of them both.
● Enter into a “contracting out” agreement under s21 of the Property (Relationships) Act 1976.
This allows couples to determine by way of a contract, the ownership of certain property.
The contract could provide, for example, that inherited money will continue to be separate
property of the person who has received it, regardless of it use. It can be stated that in the
event of a separation, the person who inherited the money would be paid out the amount of
the inheritance before the property is divided.

If you think this might apply to your situation, contact us now. For any further clarification around
this, please feel free to contact one of our Relationship Property team.

Disclaimer: The content of this article is general in nature and no intended as a substitute for specific
professional advice on any matter and should not be relied upon for that purpose.

Care of Children

When parents or guardians of a child separate, one of the most important issues to work through is
how you will arrange the care of your child. Are you to have an equal share of the day-to-day care or
will one of you have the child most of the time?

It is much better if parents can reach this agreement themselves. This agreement is called a
Parenting Agreement.

The agreement will include:

● Arrangements for day-to-day care. The parents or guardians may agree to share the
day-to-day care equally or one of them may have the day-to-day care most of the time.
● If only on parent or guardian is to have the day-to-day care, then arrangements for contact
will need to be recorded. Also, this will include what happens on special days such as
birthdays and Christmas.
● Other arrangements may the children’s care, development, and upbringing such as
education, travel, and religion.

The Care of Children Act 2004 supports parents and guardians to work through their own
arrangements for the care of children. If an agreement is not working, the Act encourages parents
and guardians to work through the differences themselves. The Family Court arranges free
counselling if it is necessary to assist in coming to a new agreement.

The Parenting Agreement may become the basis of a Family Court Parenting Order if an agreement
between parents or guardians cannot be reached. It is at that time the terms of the agreement can
then be enforced like any other Court order.

The Family Court can also arrange “Parenting Through Separation” courses to help separated parents
(or guardians) understand how the separation affects their child (children) and to help them manage
the process and to deal with each other constructively. Should you wish to be applying for a
Parenting Order from the Family Court you usually will have had to have attended this course within
the last two years.

Disclaimer: The content of this article is general in nature and no intended as a substitute for specific
professional advice on any matter and should not be relied upon for that purpose.

Frequently Asked Questions About Contracting Out Agreements

What is a Contracting Out Agreement?
A contracting out agreement can also be known as a Relationship Property Agreement and
sometimes referred to as a “pre-nup”. The agreement can cover as much or as little as the couple
wish. It can include the family home (even if this was purchased by one partner before the
relationship began or by inheritance, gift or via a trust). The only exception is if the property is on
Maori Land.

Can I prepare my own Contracting Out Agreement?
In theory, yes you can, but for the agreement to be binding and enforceable each party needs to
comply with the following:

● The agreement must be in writing and signed by both parties.
● Each party must have independent legal advice before signing the agreement.
● Each party’s signature must be witnessed by a lawyer; and
● The lawyer who witnesses the signature of the property must certify that they have advised
as to the effects and implications of the agreement.

It is important to be aware that even if the requirements have been complied with, the Court may
have the power to set the agreement aside if it amounts to a “serious injustice”.

When should an agreement be prepared?
At any time during a relationship and agreement can be prepared and signed. Ideally however it
should be signed before the relationship property laws under the Property (Relationships) Act 1976
(“the Act”) applies. This is generally once a couple have been living together in a de facto
relationship, in a civil union or married (or any combination of these) for 3 years or more. There are
limited circumstances where the Act can apply before that point.

What are the benefits?
The common benefits of a contracting out agreement include asset protection and the desire to
achieve certainty about how property would be divided in the event of separation and/or death.
Agreements are particularly common if one person has children from a previous relationship, there
are items of property that one person wants to keep separate from the relationship property (e.g., an
inheritance) or if one person is much wealthier than the other.

It is not an easy conversation to have with a person but the sooner it is discussed the better.

What will it cost?
Consider the agreement as an insurance policy. It takes time to draft, advise on and negotiate the
terms of an agreement. Our view is that a thorough contracting out agreement could save people a
considerable amount in the long run, both in legal fees and amounts of money.

What if a relationship has ended and you and your ex-partner cannot agree?
The Family Court can help divide your relationship property if you or your ex-partner cannot agree,
or negotiations break down. It can also help if the agreement is unfair. You will need to apply to the
Family Court with 1 year of your dissolution (divorce) or within 3 years from the end of your de facto
relationship. If the deadline is not met, you can ask the Court for permission to file.

Do agreements need to be reviewed?
It is important that agreements are regularly reviewed, by your lawyer, to make sure that the terms
do not being unjust and leaving the agreement vulnerable to being set aside by the Family Court.

What information does a lawyer need in the first meeting?
A brief history of your relationship including:

● Key dates
● Names and dates of birth of children (if any)
● A list of assets
● An idea of what you would like to achieve.

If you would like any further information or advice, please feel free to contact one of our
Relationship Property Team.

Disclaimer: The content of this article is general in nature and no intended as a substitute for specific
professional advice on any matter and should not be relied upon for that purpose.

Investing in real estate can be among the most rewarding and safe investments.  It can be an excellent way to create wealth.

Like any investment, doing your “homework” before you take the plunge could save you from an expensive mistake.  More importantly, don’t expect to become an expert overnight.

Some of the pitfalls can be:

1. Skimping on research

• Check out the market.  Investing in property should be viewed as a long-term investment if you wish to avoid tax implications like Bright-line. 
• Check out the Healthy Home requirements for the area, does the property meet the requirements or will there be a further financial outlay involved. 
• Research the area you wish to buy in.  Is it a desirable area for tenants, are there any land issues, what is the crime rate like?
• Make sure you have a thorough inspection done on each property’s condition.

      2. Failing to make goals

• Create a list of your goals, what do you want to achieve.
• What type of properties do you want to have in your portfolio?
• Where would you like the properties to be?  E.G., tenanted, Air B & B’s, holiday destination ….
• Would you rent the property?
• Who is your ideal tenant?
• Do you want newer properties or fixer-upper properties?

      3. Buying the wrong property

• When buying an investment property, think with your head not your heart.  
• Avoid anxious buying, this can be the quickest way to end up overspending.
• Think like a tenant.  If you want your tenants to be families, check out properties in good school zones, safe neighbourhoods, and multiple bedrooms.  If you are looking for a professional couple, then maybe an apartment or smaller properties.
• Always keep an eye out for cracks in walls, damp basements, pest damage, these could cause you a whole lot of trouble and cost a whole lot of money.
• Invest based on your goals.  Stick with your investment strategy.  Don’t be persuaded to purchase a property that doesn’t fit in with your plan.

      4. Don’t underestimate expenses

• There are always maintenance costs. 
• There will always be tax to pay.
• Don’t forget about insurance for the property.
• Before you make an offer, make a list of monthly expenses to determine the property’s return on investment.  Is it the right investment?

      5. Doing everything on your own

• Do you want to engage the services of a property manager?
• Is there a network of professionals that you can “tap into” for support when purchasing or managing your investment properties?
• Do you need to engage the services of an Accountant?
• We recommend that you seek advice from an investment property advisor before purchasing.

For further information please feel free to contact one of our team here at Kannangara Thomson.  

Disclaimer: The content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose. We do not give financial, taxation or investment advice and nothing in this article is intended as such.  If you require a referral to an investment property advisor, we can connect you with an appropriate professional.

The healthy home standards became law on 1 July 2019.   From 1 July 2021, landlords needed to ensure that all rental homes had to comply with the standards within 90 days of any new or renewed tenancy.  By 1 July 2024, all rental homes must comply with the standards regardless of when a tenancy began.

The standards introduced specific and minimum standards for heating, insulation, ventilation, moisture and drainage, and draught stopping in rental properties.

Heating 

Landlords must provide one or more fixed heaters that can directly heat the main living room.  The heater(s) must be an acceptable type and must meet the minimum heating capacity required for your main living room.

Insulation 

Ceiling and underfloor insulation has been compulsory since the introduction of law.  The standards build on current regulation and some existing insulation will need to be topped up or replaced.

Ventilation 

Rental homes must have openable windows in the living room, dining room, kitchen, and bedrooms.  Kitchens and bathrooms must have extractor fans or an acceptable continuous mechanical ventilation system.

Moisture ingress and drainage

Rental properties must have efficient drainage for the removal of storm water, surface water and ground water.  There must be a ground moisture barrier where there is an enclosed sub-floor space.

Draught stopping

Landlords must make sure that the property doesn’t have any unreasonable gaps or holes in walls, ceilings, windows, doors, floors, skylights which cause noticeable draughts.  All unused open fireplaces must be closed off or their chimneys blocked to prevent drafts.

Exemptions

There are some properties which may be exempt from complying partially or fully with the healthy home standards.  You will need to check your options around this.

Compliance statement

All new or renewed tenancy agreements must include the specific information about the rental property’s current level or compliance with the standards.

For further information check out https://www.tenancy.govt.nz/healthy-homes/changes-to-the-healthy-homes-standards/

Disclaimer: The content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose.

Working from home has proven to be popular for some. With modern technology and the desire for
flexible working conditions, it has been increasingly more common for employers to allow employees to work from home on occasion.

Employers need to remember their obligations to staff remain the same, even while working remotely. Under the Health and Safety at Work Act 2015 (Act) an employer has a duty to ensure the employee’s safety so far as is reasonably practical.

There are certain steps that should be considered by an employer such as asking employees to complete a work station checklist at home. There should also be a working from home policy in place. That policy should include, for example, that the employee agrees to take regular breaks, to keep work related information and data secure, that the employee’s workplace is free of hazards and that employees will be expected to return to the workplace when required.

Where possible, employers must ensure that employees who have the ability to work from home have all the proper equipment to do so. At the end of the day, this will depend on each employees’ circumstances and the role that they hold. Best practice is that employers and employees work together to find a fair and reasonable solution.

Disclaimer: The content of this article is general in nature and no intended as a substitute for specific
professional advice on any matter and should not be relied upon for that purpose.

There are several types of employment in New Zealand with the main ones being permanent (full- time or part-time, fixed term (full-time or part-time) or casual.

Permanent (either full-time & part-time)
This is the most common type of employee. Permanent employees have a full set of employment rights and responsibilities. Employees must meet certain criteria to qualify for parental leave, parental leave payments, annual holidays, sick leave, and bereavement leave. Often the employee must work for 6 (sick leave and bereavement leave) to 12 months (parental leave and annual leave) before qualifying for those entitlements. No time limit or otherwise on their employment contract. It carries on until you as the employee or you as the employer terminates the contract.

Fixed-Term Employees
A Fixed term employee is treated the same as permanent staff in term of employment rights and obligations. The fixed term means that they are employed by your business for a specified period. Some common reasons for this are to replace someone who is on parental leave or to work on a particular project. There must be a genuine reason for a fixed term period and the employee needs to be told of this reason.

If you, as an employer want to dismiss a fixed-term employee before the specified term is up, then
there must be a legal reason for the dismissal, e.g., serious misconduct etc)

Casual Employees
There is no set legal definition of what a ‘casual employee’ is, but it generally refers to where the employee does not have any guaranteed hours and no ongoing expectation of employment. Employment rights and responsibilities still apply to casual employees, but the way annual leave and sick leave is applied can vary.

Every time a casual employee accepts an offer of work, it is treated as a new period of employment
and this must be made clear to them in their employment agreement. There is also no obligation on
the casual employee to accept the offer of work.

Know your minimum rights

Disclaimer: The content of this article is general in nature and no intended as a substitute for specific
professional advice on any matter and should not be relied upon for that purpose.

Trial and probationary periods can be used to make sure that an employee can do the job. These must be agreed in the employment agreement. A probationary period cannot be applied after a trial period. These shouldn’t be used instead of a proper recruitment process. Trial periods and probationary periods are used for similar reasons but have different requirements and effects.

Trial Period
A Trial period must:

 Be an express written term of the employment agreement
 State that the employee may be dismissed within a trial period is not entitled to bring a personal grievance or other legal proceedings in respect of the dismissal
 Be no longer than 90 days
 Only applies to new employees

Trial period are currently limited to employers with less than 20 employees.

A duty of good faith still applies but no formal process is required.

A trial period clause places fair greater restriction on an employee’s rights. This clause, if applied correctly, can prevent an employee from bringing a personal grievance for unjustified dismissal at the end of a trial period. Notice of termination under the trial period must be in accordance with the terms of the employment agreement. If the requirements are not met, the trial period will not be effective. This means that the dismissed employee will have grounds for a valid personal grievance.

To rely on a trial period to dismiss an employee, the employee must have been aware of the trial period and had a chance to get advice before signing the agreement.

A trial period enables the employer to dismiss an employee without going through the typical dismissal process like poor performance or misconduct.

A common misconception is that while employees are “on trial” that they are not entitled to the same employment rights and entitlements as the other employees. This is not true. A trial period only affects how you can dismiss an employee. An employee who is “on trial” can still bring a personal grievance for other issues such as discrimination or harassment.

Probationary periods
A probationary period can be used to find out if an employee new to a job or for employees who are changing jobs with the same employer. Probationary periods must be in the employment agreement.

A probationary period:
 Can provide a fair opportunity for an employer to assess an employee’s skills
 Can let a person new to a job show that they have the skills to do the job.

 Can be used when an employee starts a new job even if they already work for the employer but are changing jobs.
 Must be recorded in writing in the employment agreement and clearly state that there is a probationary period and how long it will last. The period can be any length of time, but it
must be recorded in the employment agreement.
 It must be paid; employers can’t use a probationary period to get work done for free
 It doesn’t limit the rights and obligations of the employer or the employee
 Must be negotiated and used in good faith
 Must be a reasonable length of time considering all the relevant circumstances of the employer, the employee, and the job.

A probationary period cannot be applied after a trial period.

During the probationary period
The employ must follow a fair process during the probationary period. This includes:

 Telling the employee if there are any issues with their work and if there is a chance that their employment might not be continued after the probationary period ends.
 Telling them what these issues are, and what good performance in this area looks like
 Giving the employee support, and ongoing and appropriate training
 Giving the employee every opportunity to improve. This means that the employer should be giving feedback, support, and training throughout the probationary period so that the employee knows that there are issues and giving them the opportunity to improve.

It is good practice for employers to tell an employee on a probationary period when they might expect to receive training and feedback at the start of their employment. The employer must follow through on any commitments made.

In some situations, the employer may choose to remove a probationary period and confirm employment early. If this is done, it must be in writing as it is a change in the employment agreement.

At the end of the probation period
If the work is going well then as an employee, you and your employer do not need to do anything to continue your employment. At the end of the probation period, your employer:

 Won’t dismiss you
 Your probation period ends
 Your employment continues automatically on your existing terms and conditions of employment but with no probation period.

If the work hasn’t gone well, an employer cannot just tell the employee to leave their job at the end of the probation period. The employee must have been assessed fairly and if their work was not good enough, they must tell the employee why and that they intend to end their employment.

The employer must give the employee an opportunity to respond. If, after considering any response, the employer decides to end the employee’s employment they must give the employee notice in their employment agreement.

If, as the employee, you are dismissed at the end of a probation period, you can raise a personal grievance on the grounds of unjustified dismissal, for example:

 If you think your employer didn’t have a good enough reason to dismission you
 If you were not given appropriate advice or training on how to do the job effectively, or
 If you were not fairly assessed by your employer.

Disclaimer: The content of this article is general in nature and no intended as a substitute for specific
professional advice on any matter and should not be relied upon for that purpose.

With the COVID-19 pandemic there has been shift in thinking about how we treat those coming to work when they are sick. More people are working from home while sick rather than taking sick leave.

Findings in the fifth Workplace Wellness Report by Southern Cross and Business New Zealand show that close to 90% of businesses have made it clear that staff should stay at home when they were sick, but 62% report sick staff working from home.

People being able to work from home has its benefits but there is a risk that people are working even if they are unwell. With a up to 50% of the population being able to work from home, the lines between work and life are becoming increasingly fuzzy.

For many people, working from home while they are sick is a convenient option, if their employer allows it. It prevents spreading contagious illnesses around your work colleagues and that is something we are all trying to avoid now.

Prior to the COVID-19 pandemic, if people called in sick, they were out of the office until they were well, but now there is a temptation for employees to log in and work. The onus is on the employee to stand firm and not work when they are ill. If you are unwell, you are not focused, not focused leads to mistakes and mistakes can cost – emotionally, physically, and financially.

Employers must accept that staff sickness is inevitable and resist the temptation for ask staff to complete work at home.

Working from home makes it harder for employers to see when employees are ill, so they are less likely to tell people to take sick leave. Employers need to actively encourage employees to take time away from work when they are sick.

As a rule, it is always best to stay home when you are sick. So, the next time you wake up with a runny nose, cough, and a headache. Stay home and rest. By Law you are entitled to 10 working days sick leave. If you need to use it, use it!

Disclaimer: The content of this article is general in nature and no intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose.

September is New Zealand Wills month and is a good reminder of the importance of having a Will and keeping it current.

A Will gives you peace of mind and knowing that the people and the causes that matter to you will be taken care of when you have gone. As far as you and your family are concerned, your Will could be the most important paper you ever sign. A Will can relieve the financial and emotional strain on your family after your death and help minimize chances of any dispute about your estate. It isn’t just money you need to think about, but also your possessions (even if they are more of a sentimental value than financial) and your debts.

Even if you don’t own major assets, you can quite quickly build up possessions that have a sentimental or monetary value to you and to others. A Will allows you to decide who gets what. If you have children, it is the opportunity to select guardians (known as testamentary guardians) to help guide your children until the reach adulthood.

Anyone of sound mind aged 18 or over can make a Will. A person under the age of 18 may make a Will if they are (or have been) married, in a civil union or a de facto relationship. Others under the age of 18 can make a Will if approval is given by the Family Court or if they are in the military or are a seagoing person.

If you don’t have a Will see our article regarding how your Estate would be distributed in accordance with the Administration Act.

For more information see https://www.lawsociety.org.nz/for-the-public/common-legal-issues/making-a-will-and-estate-administration/

Get in touch with our Kannangara Thomson team to discuss what you need to do. Our contact details are:

Telephone: 03 377 4421
Email: email@ktlaw.co.nz