INTENSIVE. Death and the Law

Transcription

1 INTENSIVE Death and the Law MAY 2012

2 FROM THE CHAIR Death comes to us all. But preparing for it, or dealing with the consequences of death can be stressful for the client and complex for the practitioner. Providing sound legal advice and practical assistance in these circumstances requires a thorough understanding of the law and an appreciation of practical matters peculiar to death and dying. The aim of this intensive is to address legal issues that commonly arise before death, on death and after death. Recent developments in the law make this intensive a must for any practitioner advising clients on estate planning, matters relating to probate or disposal of the body, and claims after death. There have been several changes in legislation in the past few years. The Wills Act 2007, the Succession Homicide Act 2007 and the Human Tissue Act 2008 are all new and central to the disposal of property and use of the body. The provisions relating to enduring powers of attorney in the Protection of Personal and Property Rights Act 1988 have also been changed. Then there is the repeal of gift duty, which may mean there is no estate to dispose of and give rise to restoration claims hitherto not commonly encountered on death. The courts have not stood still either. There is new case law on testamentary capacity, knowledge and approval of wills, the status of body parts, the disposal of the body, eligibility to make a Family Protection claim, the basis upon which Testamentary Promises claims should be determined and a variety of issues relating to the Property (Relationships) Act on death. All these changes make an intensive on Death and the Law very timely. It will provide you with up to date coverage of recent legal developments and give you practical tips on matters such as advising elderly clients and tracing relatives. I look forward to welcoming you to this intensive on Death and the Law. Best wishes, Professor Nicola Peart Programme REGISTRATION Tea and coffee will be available INTRODUCTION TO THE DAY Chair: Professor Nicola Peart SESSION 1: CAPACITY AND BEST PRACTICE Before a person makes or changes a will, the lawyer taking

3 CHAIR Presenters instructions must be satisfied that the person has capacity. It is also important to ensure that the testator has not been subjected to undue influence. The will of a testator lacking capacity, or under undue influence, may be invalid. Issues of capacity also often arise when a person grants a power of attorney, and in the trust context, when acting as trustee or appointor. Lack of capacity is not an issue confined to the elderly and is not always easy to detect. If there is any doubt regarding an individual s capacity it is critical that the lawyer follows best practice in establishing capacity and, if it is absent, in dealing with the implications. Juliet Moses and Harry Waalkens QC MORNING TEA SESSION 2: ADVICE AND DRAFTING Presenters Life in the 21st Century is very different to that of just 30 years ago. Marriage is less common, second or more relationships are increasingly common, some couples have s 21 agreements under the Property (Relationships) Act, family trusts are prevalent, and changes to the gifting rules mean individuals may have very little personal property. All of these things and the implications they raise must be considered when advising clients on what should go in their will. It is equally important to ascertain that your client understands what you have been explaining to them. Poorly drafted wills create problems of their own and (as with poor advice) can raise issues of lawyer negligence. Catherine Atchison, John Donovan and Chris Kelly LUNCH SESSION 3: IMMEDIATELY POST DEATH When a person dies there are several immediate questions. Should some or all of the body be donated for use by others? What about the funeral and burial arrangements? What happens to frozen tissue stored by the deceased for personal future use? Who decides all these questions? And then there are the questions about wills. Did the deceased have one? If so, is it valid? Is it correctly expressed? There have been recent developments in relation to all of these questions that this session will address under the following headings: validity and correction of a will the High Court jurisdiction and case law issues relating to the body disposal of the body, donation of

4 Presenters the body or body parts, post-mortem sperm removal and stored tissue. The Hon Justice Alan MacKenzie and Professor Nicola Peart AFTERNOON TEA SESSION 4: POST DEATH Presenters Money brings out the worst in some people. In this session we discuss the various claims that can be made against estates with a particular focus on recent cases and some of the more difficult circumstances that can arise. What advice should you give claimants and beneficiaries? We also discuss the roles of legal advisers for the parties, including the estate trustees and how settlements of disputes should be documented. Bill Patterson, Greg Kelly and Jacinda Rennie SUMMARY OF THE DAY Chair: Professor Nicola Peart CHAIR PROFESSOR NICOLA PEART, FACULTY OF LAW, UNIVERSITY OF OTAGO, DUNEDIN Nicola was appointed to the law faculty at the University of Otago in 1987, where her research has focused on family property law, including trusts and succession law, and medical law. She is the principal author of Relationship Property on Death (2004 Brookers) and the editor and contributing author of Family Property (2008 Brookers Thomson). PRESENTERS CATHERINE ATCHISON, MARTELLI MCKEGG, AUCKLAND A partner since 1988, Catherine heads the firm s Trust Administration and Asset Planning Department and has wide experience in all aspects of family and business asset protection. In addition she advises on formation and management of charitable trusts and sits on the board of a number of major charitable trusts. JOHN DONOVAN, CHIEF LEGAL ADVISER, PUBLIC TRUST, WELLINGTON John has extensive experience in wills drafting and estates administration and is responsible for developing many of the Public Trust precedents and legal processes in these areas. He is also the co-author of the chapters on Executors and Family Arrangements in LexisNexis New Zealand Forms and Precedents and has presented at NZ Law Society conferences.

5 PRESENTERS CHRIS KELLY, GREG KELLY LAW LIMITED, WELLINGTON Chris has specialised in trust and estate work for more than 30 years and was, until recently, General Counsel at NZ Guardian Trust. He has coauthored a number of legal texts and publications including: the leading New Zealand legal textbook on trusts Garrow and Kelly Law of Trusts and Trustees (6th edition) and Dobbie s Probate and Administration Practice (5th edition). GREG KELLY, GREG KELLY LAW LIMITED, WELLINGTON Greg has 30 years experience in the wills, trusts and estate area. He is a member of the Wills and Trusts Committee of the NZLS Property Law Section, and of STEP. Greg is a contributor to Butterworth s Law of Trusts, probate and administration author for McGechan on Procedure, co-author of Garrow and Kelly Law of Trusts and Trustees (6th edition) and of Dobbie s Probate and Administration Practice (5th edition). THE HONOURABLE JUSTICE ALAN MACKENZIE, HIGH COURT, WELLINGTON Alan was appointed in 2004 as a Judge of the High Court of New Zealand. He previously practised in Wellington as a litigator and legal adviser principally in commercial and public law. He was a partner in Stone & Co (later Rudd Watts & Stone) from 1971 and a barrister sole from JULIET MOSES, TAYLOR GRANT TESIRAM, AUCKLAND Juliet specialises in trusts, personal asset planning and superannuation. She is a regular presenter of seminars on issues arising in these areas and she also presented at the 2011 NZLS CLE Trusts Conference. BILL PATTERSON, PATTERSON HOPKINS, AUCKLAND Bill has an extensive trust, commercial and equity litigation practice. He has presented many papers for ADLS and NZLS, including all seven of the 1999 to 2011 NZLS CLE Trusts Conferences, three of them as chair. He also does regular topics for the Institute of Chartered Accountants Trusts Special Interest Group.

6 PRESENTERS JACINDA RENNIE, MCWILLIAM RENNIE, WELLINGTON Jacinda has specialised in family law for the past seven years, becoming a partner at McWilliam Rennie, a specialist family law firm, in She is a contributor to Brookers Family Law Family Property in relation to Section 21 Agreements. Jacinda was a presenter for the NZLS CLE 2007 seminar on Section 21 Agreements. HARRY WAALKENS QC, QUAY CHAMBERS, AUCKLAND Harry has over 30 years experience as a lawyer, the last 18 years of which have been as a barrister sole. He took silk in 2004 and in 2009 was the first of, what to date have been, two appointments in the Kingdom of Tonga as King s Counsel. Harry specialises in medico-legal litigation and has experience in the topic of testamentary capacity and related matters. Information about the day CENTRE DATE VENUE TIME Wellington 24 May Rangimarie Te Papa 8.30am 5.00pm Auckland 25 May Stamford Plaza 8.30am 5.00pm WHO SHOULD ATTEND All trust, family and property law practitioners. MATERIALS A booklet of papers will be given to participants when they register on the morning of the intensive. FEE (INCL GST) The registration fee includes all materials, morning and afternoon teas and lunch. Earlybird rate By 24 April OR After 24 April NZLS member $550 $610 Non-member $610 $670

7 REGISTRATION FORM Online registration and payment can be made at PLEASE REGISTER ME FOR: Death and the Law Intensive CENTRE DATE VENUE Wellington 24 May Rangimarie Te Papa Auckland 25 May Stamford Plaza LAST NAME (PLEASE PRINT) FIRST NAME TITLE NAME FOR NAME TAG FIRM / ORGANISATION PO BOX DX TOWN / CITY POSTCODE PHONE FAX CANCELLATION AND REFUND POLICY Please note: Minimum and maximum numbers apply. Registrations will be accepted on a first-come/first-served basis. Registrations close 10 working days before the presentation date (the closing date). NZLS CLE Ltd reserves the right to cancel any session that does not reach the budgeted minimum number of registrations. This decision will be made on the closing date and a full refund will be made to each registrant of the cancelled session. If you cancel your registration before the closing date, a refund will be made, less a $100 administration fee. After the closing date, there will be no refund. You may transfer your registration to another person until five working days before the presentation. Please advise NZLS CLE Ltd in writing of the change. PRIVACY ACT 1993 The information requested on this registration form is for NZLS CLE Ltd and the sponsors only. I do not wish the sponsors to receive my contact details.

8 FEE (INCL GST) Registrations will not be actioned until payment is received. The registration fee includes all materials, morning and afternoon teas and lunch. Please note: NZLS members include NZLS Associate members. Earlybird rate By 24 April OR After 24 April NZLS member $550 $610 Non-member $610 $670 Total amount due: $ PAYMENT I attach a cheque made payable to NZLS CLE Ltd Please debit my credit card account Mastercard Visa Amex CARD NUMBER EXPIRY DATE NAME ON CARD SIGNATURE OF CARDHOLDER SEND TO:NZLS CLE Ltd PO Box 5041, Wellington 6145 or DX SP20202 Fax: REGISTRATION INQUIRIES:Freephone TO REGISTER AND PAY ONLINE OR VIEW THE CLE PROGRAMME AND PURCHASE BOOKLETS SEE