Qualifications
- LLB (First Class Hons), BCS, University of Waikato 2012
- Admitted to the Bar in New Zealand in 2013
Contact
- DDI: +64 7 570 0687
- M: +64 27 464 2966
- E: rebecca.steens@hobec.co.nz
Rebecca is an estates, trusts and elder law specialist. She works across both the estates and litigation teams, providing advice for complex trust and estates. She also maintains a general civil litigation case load and regularly appears in the District and High Court.
Rebecca’s unique practice areas means she is able to assist clients to avoid disputes where possible, achieve negotiated outcomes, or, if required, secure the best result via the Court system.
Rebecca is a Tauranga local and started her career at another Tauranga firm. After this, she spent four years working at a global offshore firm based in Jersey (Channel Islands). During this time, she focused on contentious and non-contentious trust and estate matters and has since brought this experience to strengthen Holland Beckett’s expert knowledge in this area.
Outside of work, Rebecca participates in triathlon events as well as competing in road cycling competitions at both regional and national level.
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Succession Planning – Case Study: John Johnson
John Johnson is a 68 year old widower. He has a complying Family Trust that owns the majority of his assets (only his KiwiSaver is in his personal name). The Trust was established several years ago when John operated a business, for creditor protection. On his death, John intends for all his personal assets and the assets settled on the Trust to be divided equally between his daughters, Sandy (who lives in Sydney) and Wendy (who lives in Wellington). John’s lawyer says it is generally not advisable for overseas family members to: be the executors of your Will; or
be appointed as your attorney for either property or your personal care and welfare matters. Having received advice, John has nominated Wendy alongside his solicitor, as his executors and trustees. For his Enduring Power of Attorney documents, John appoints Wendy and a family friend who are based in New Zealand. John is also advised about the Trust Act 2019, which has placed increased obligations on trustees by introducing, amongst other things, the presumption of making basic Trust information available to all beneficiaries (whether they are likely to benefit or not) and the duty to invest Trust assets prudently. John’s lawyer suggests that now would be a good time to review his Trust to determine whether: the Trust is still needed;
whether trustees are meeting their obligations; and
whether the Trust Deed can or should be varied to reflect the changes introduced in the Trusts Act 2019. The advice to John is that if you don’t have a Trust for a really good reason, like asset and creditor protection, a Trust may just be another unnecessary and costly complication in life. As John no longer operates his business, he does not need the Trust for creditor protection. However, John’s lawyer indicates that there may be benefits in keeping the Trust for residential care. In John’s case, he is likely to obtain a residential care benefit by keeping the Trust, because his personal assets fall under the threshold of $273,628, his only income is superannuation, and the Trust assets were gifted some time ago in line with MSD’s gifting rules for the residential care subsidy. The lawyer advises that there are other estate planning options to maximise residential care benefits for couples without a Family Trust. For example, if a couple’s main asset is their home then they could consider life interest Wills so that if the survivor of them needs care, half of the equity in the property is protected. Where a single person owns a property in their personal name there are less options. Tax is also a consideration. John is advised that in many overseas jurisdictions, distributions from Trusts are taxed more harshly than distributions from a person or from their estate. John is cautioned that if Sandy from Sydney is to receive a distribution from the Trust (rather than his estate), there may be tax consequences. He is advised to speak to his accountant about this. Ultimately, John would have to weigh up the potential benefit of keeping the Trust in the case that he went into residential care, against the potential tax consequences for Sandy. John suddenly passes away. Wendy from Wellington receives a half share of the Trust assets and estate assets without any deduction (as generally in New Zealand there are no tax consequences for receiving a Trust capital distribution). However, in accordance with Australian tax rules Sandy from Sydney’s half share is taxed as income and she therefore receives a significantly smaller share than her sister. Succession planning – Is it time to review your affairs? As your circumstances change, your Will and wider estate planning (such as Family Trusts and Enduring Powers of Attorney) should be reviewed. It may be that what once was suitable for you and your family, is no longer practical. Here are some important events that should trigger a review: change in relationship status (for example, a marriage will automatically revoke your Will but a separation will not);
change in financial situation;
change in health (yours or your families);
sale or purchase of a property;
births/deaths;
family members moving overseas; and
law changes – such as the Trusts Act 2019. If it has been a while since you last reviewed your estate planning, or if you have had a change in circumstance, we encourage you to speak to a professional about reviewing your wishes. In particular, if you have overseas family members, chat to your lawyers about your estate planning to ensure unnecessary cost and complications are avoided.
Wills and new relationships
Online Tools
We provide an obligation free online tool to provide you with further information based on your specific circumstances.
Relationship Property Agreement or Contracting Out Agreement (Pre Nup) Click here to get started Will Preparation Click here to get started Estate Administration Click here to get started How to avoid disinheriting your children without leaving your new partner high and dry.
If you have children from a prior relationship and a new partner it is important your Will balances the needs of your partner and children and each of their potential claims against your estate.
Family Protection Act 1955 obligations
Under the Family Protection Act, a person has a moral obligation to adequately provide for certain people in their Will. These people include partners, children and grandchildren. What is adequate depends on the circumstances, such as the size of the estate, the individuals needs and the needs of the other beneficiaries. While you have a moral obligation to provide for your children in your Will, your partner usually does not have a moral obligation to provide for your children in their Will, unless they are minor or dependents when you pass. If your Will leaves everything to your partner then: If your children make a claim against your estate – they have a good chance of success as they have been left out of your Will. A claim is stressful for all involved, diminishes the value of your estate and can be detrimental to relationships; and
If your children do not make a claim against the estate – they might be left something in your partner’s Will, but your partner could later change their Will to exclude your children and your children would not be entitled to make a claim against their estate. Property (Relationships) Act 1976
Unless a valid Contracting Out Agreement or Relationship Agreement is in place, a surviving partner has the right to choose whether to (A) make an application to the Court to divide the estate in accordance with their relationship property entitlement or (B) accept their gift under the Will. It is important to understand that your assets are not just at risk in the event of separation, but also on death. For this reason, it is important to have relationship property advice to ensure your wishes are honoured on separation or death.
Possible Will structures
Here are three common Will structures for second or subsequent relationships. 1. Mirror Wills
You and your new partner create Wills leaving all assets to each other in exchange for a mutual promise that when you both pass your assets will be distributed in a certain way (for example, 50% to your children and 50% to your partners children). This creates a binding obligation on the survivor not to change the ultimate beneficiaries of their Will. The Wills can be updated provided you both agree during your lifetimes. At its best, this structure gives the survivor a comfortable lifestyle while providing your children with reassurance that they will be provided for in the end. There are some difficulties with this including: Disgruntled children may still make a claim under the Family Protection Act. Speaking with your children about your Will can be helpful as it manages their expectations and prevents the feeling of a nasty surprise when you pass. Alternatively, you can make all of your assets joint in an effort to prevent a claim – as joint assets pass automatically to the survivor, making it much harder to make a claim.
While the survivor might not change their Will, the assets may be depleted during their lifetime so that your children receive a much lesser amount than you intended. 2. Early gift to children and residue to spouse
Your Will can leave a gift to your children (such as your Kiwisaver, a cash gift, a percentage of your estate or a life insurance policy) and the residue to your partner. This ensures your children receive something now while your partner still receives enough to comfortably live on. If desired, you can use a combination of an early gift and mutual Wills so that your children receive something now and when you both pass. 3. Life interest Wills
This is perhaps the most certain way to provide for your partner during their lifetime and your children when both you and your partner pass. Usually a life interest Will allows the survivor to live in a property (or substitute residence) for the rest of their lives on the basis they pay for outgoings. A life interest can also be over the whole estate, so that the survivor can live off any income generated from other assets (such as the proceeds of any bank accounts and investments). This can also be beneficial for the survivor if they go into residential or hospital level care, as it will reduce the assets they own in their own name. A life interest Will can be beneficial, but can also add cost and complication. A life interest creates a Trust and, for the rest of the survivor’s life there would be trustees involved in key decision making (such as selling and buying a new residence) and possibly ongoing tax returns for the estate.
Speak to a professional
If you have children from a prior relationship and a new partner, we can help you plan for the future in a way that protects all the people you love.
How can I challenge a Will?
If you feel like you haven’t been properly provided for by a close family member or friend, you are able to apply to the Court for this to be changed. This can be done in a number of ways, but the two main laws are the Family Protection Act 1955 (FPA) and the Law Reform (Testamentary Promises) Act 1949 (TPA). Who is eligible to make a claim? Under the FPA, spouses, civil union partners and de facto partners of the deceased are all eligible to claim. Children, grandchildren and step children who were being wholly or partly supported are also able to claim. Parents of the deceased are only able to claim in limited circumstances. Under the TPA, any person who has been promised provision under the will can make a claim. However, claims usually come from relations not provided for under the FPA, or close family friends. Is there a time limit on making a claim? Under both the FPA and the TPA, you have 12 months to lodge a claim. However, we recommend that you file a claim as soon as possible to make sure that all of the Estate assets are available. How can I claim under the FPA? The FPA gives specified family members the right to apply for provision out of a family member’s estate. The purpose is to ensure that family members receive their fair share of an estate and are adequately provided for by the deceased. This is because the FPA creates a moral duty, for example from a parent to a child. If you make a claim, the Court will consider whether adequate and proper provision has been made for your maintenance and support. This means the Court will consider factors such as the relationship between you and the deceased, the size of the estate, your financial need, and any ethical elements such as your right to feel a sense of belonging to the family.. A claimant in need (whether financial or otherwise) will have a stronger claim. How can I claim under the TPA? Under this Act you will need to prove that the deceased made you an “express” or “implied” promise of reward for the work you did. If this is proven, then the estate will have an obligation to make a reasonable award to you. To succeed in a claim under the TPA, a person must show that: Services or work were rendered by you to the deceased in the deceased’s lifetime; There was a promise from the deceased to you in reward for the services; There is a connection between the services rendered and the promise; and The deceased failed to make the promised testamentary provision or otherwise remunerate you. The term “services” essentially means work. It has been given a broad definition by the Courts, and includes physical work and even emotional support where it goes above and beyond what would usually be expected. A “promise” means any statement or representation of fact or intention. The promise can be expressly made, or it can be implied. Unfortunately, these sorts of claims can be difficult to prove. If there is information to support a promise being made (ie. some evidence in writing), or other witnesses who heard the promise being made, this will help with proving the claim. The Law Commission has recently reviewed succession law, and has recommended a new Inheritance Act to replace these Acts. This reform is expected to take several years, so it will be some time before we see any changes. There are a few things to think about in relation to your Will. Try our Will questionnaire here, and one of our Estate Planning Team will be in touch.
Will Drafting – Our Top 5 Tips
We provide an obligation free online tool to provide you with further information based on your specific circumstances.
Click here to get started A well drafted Will reduces the time, money and stress of administering your estate when you pass. At Holland Beckett Law, we take the time to ensure that your Will suits your circumstances, while keeping it simple. Below are our top 5 tips to ensure that your Will is fit for purpose. 1. Choose the right executors and trustees of your Will
The executors and trustees (“Trustees”) carry out the terms of your Will. Trustees must be neutral between the beneficiaries (not biased) and make decisions together. We recommend that you pick two Trustees who live in New Zealand, can work well together and are neutral towards your beneficiaries. This will help to make the administration of your estate straightforward and cost effective. Where possible at least one Trustee should be younger than you, as it can complicate matters if your Trustee(s) have already passed away before you. If your Will is complex or you think that there may be a dispute in the family after you die, then you could consider appointing an independent professional as your Trustee. 2. Dealing with personal items
When it comes to distributing personal items there are typically two options. The first, is to leave everything to a person or group of people and let them sort it out. The second, is to list what you want to do with each valuable or sentimental item. If you prefer the second option, rather than listing each item in your Will, you can leave your personal items to your Trustees to distribute in accordance with any wishes you make known to them. You can then make a list which can be updated at any time, without the hassle and expense of updating your Will. The list should be kept in your lawyer’s deed safe with your Will. 3. Cash or percentage gifts
We recommend that you do not leave a cash gift in your Will. This is because, over time, circumstances can change and that gift may become a much larger or much smaller portion of your estate than you intended. Instead consider leaving a percentage of your estate. For example, instead of giving $10,000 to each of your grandchildren you could consider giving 10% of your estate equally to your grandchildren. This means the gift will increase/decrease proportionately. 4. Understand how your property is owned
If you are leaving everything to your partner, check to see if your property is jointly owned. Jointly owned property (property ownership as joint tenants) passes automatically to the survivor, which makes for a quick and hassle free process. Any asset over $15,000 requires an application for probate (Court authority) to deal with that asset. Check how your insurance policies are owned. If you own the policy, your estate will likely need to apply for probate and the proceeds will be distributed in accordance with the terms of your Will. If the policy is jointly owned, or owned by someone else, then that person may be able to access the policy straight away. If in your Will you leave your partner a life interest to live in a property, that property should be owned as tenants in common (where you each own a share). 5. Understand your debts
If you want to leave a vehicle or property to a beneficiary that is under finance, consider how the debt will be repaid - does your estate have enough to repay the debt? Are you giving that particular property to the beneficiary on the condition they take on the debt? Unfortunately, even the most carefully crafted Will can become impractical or even void if your circumstances change. While we try to plan for this with our Will drafting, if you have any major change in circumstance - such as a birth, death, marriage, separation, divorce or a family member moving overseas – you should have your Will reviewed and potentially updated. There are a few things to think about in relation to your Will. Try our Will questionnaire here, and one of our team will be in touch. Holland Beckett Law can assist with preparing your Will or reviewing an existing one. If you have any queries please reach out to a member of our team.
Do I need a Will?
A Will is perhaps the most important document a person might leave behind on their death. Around 1,500 people in New Zealand die without a Will each year.
Why is a Will so important?
A Will sets out a persons wishes after they die, and nominates a person or persons, called executors, to be legally responsible for carrying out those wishes. Such wishes will include things like: The distribution of your assets
Maintaining and supporting your partner
Gifts to family, friends and charities
Appointing a guardian for children
Transferring assets to a family trust and appointing replacement trustees
Dealing with company assets
Burial wishes Without a Will to guide what you want to happen with your assets, the law decides who will receive your assets and in what proportions (Section 77, Administration Act 1969). For many people, what the law says might be quite different from what you want to happen. Having a Will means your intentions and hopes are clear. If you do not have a Will it is worthwhile to consider the following: Who do I want to ensure is looked after when I pass?
Do I have any special items I want to give to particular people?
Do I want to set up a trust when I die or gift money or property to an existing trust?
Do I want to support a charity or organisation?
What funeral arrangements would I prefer?
Who would I trust to be responsible for my assets when I die?
Who will look after my children when I pass?
Are my partner and my children provided for?
What would I like to do with my digital assets (access to social media, shares, bitcoin)? As your circumstances change you should consider updating your Will. Therefore, if you have had a Will prepared some time ago, you should consider if your Will needs to be updated. If you get married or enter a civil union your will is automatically revoked.
A Will can be challenged
The law recognises that if you have a partner, child and grandchildren they should be acknowledged in your Will when you pass away. If your Will does not adequately provide for your partner, children or grandchildren (and in some circumstances your step-children) then there may be arguments after you die and a Court could be asked to decide what should happen. Your Will can be invalid if it does not contain certain formalities, or was prepared when you did not have capacity or you were forced into signing it. Therefore, it is important not only to have a Will, but to ensure that it is well prepared to best give effect to what you want and avoid arguments later on. Talk to our estate planning team about your options and to obtain the right advice for you. There are a few things to think about in relation to your Will. Try our Will questionnaire here, and one of our team will be in touch.