They had been thinking of down-sizing for a while, so signed the Agreement for Sale and Purchase that had been placed in front of them without any legal or other advice.

After they had signed the agreement they discovered they had sold for well under market value.  There was nothing they could do about that as it was an unconditional agreement.

This problem could have been avoided if they had:

1. Obtained a valuation from a valuer before agreeing to the price, or;
2. Engaged an agent to sell the property for them and carry out an appraisal and the marketing of the property;
3. Consulted their lawyer before they signed the agreement.

The comparatively modest investment in appropriate advice and services when selling their property could have avoided what turned out to be a significant loss for the couple.

1. Promises
   
   If you have performed a service or have done work for the deceased, and they promised to reward you in their Will but didn’t, then you can make a claim against the estate. An example of this situation is if you have provided substantial unpaid care for a person on the basis that they promised to give you a share of their property after their death.

   The promise to reward the worker in the Will must be related to the work provided. It would not be enough if you were doing the work out of the goodness of your heart and then decided that you deserved payment. The amount awarded by the Court will be confined to reasonable compensation for the work actually done for the deceased.

2. Challenge the Will
   
   When a person makes a Will they must be of sound mind and must not have been unduly influenced or fooled into making any provisions in the Will. If you think that the deceased was not of sound mind, then you can apply to the Court to have the Will declared void. Medical evidence would be needed to establish their condition. Once that has happened the estate would be divided according to the last valid Will. If there was no previous Will, then the situation is called an intestacy. In an intestacy, property is divided between surviving spouses or de facto partners, children, parents and siblings according to set rules.
3. Family Protection
   
   The law imposes a moral duty on people to adequately provide for the proper maintenance and support of certain people entitled to provision from their estate. This includes the deceased’s spouse, de facto partner, children, stepchildren, grandchildren and parents.

   The duty to provide for the above people is not limited to those who are in financial need. Many well off claimants have received substantial payments from the estate for non-financial reasons, such as to acknowledge that a person belongs in the family. The amount of payment varies dramatically between cases as it depends on all of the circumstances of the particular case.

4. Relationship Property
   
   A spouse or de facto partner of a deceased person can claim half of the relationship property, under the law that deals with the division of relationship property. The only exception to this is if the couple had signed an Agreement Contracting Out of the Act during their relationship.

There are four main restrictions on doing what you want in your Will.

1. Family Protection Act

There is a moral duty on the Will-maker to adequately provide for the proper maintenance and support of people entitled to provision from their estate.These are:

• The Will maker’s wife or husband;
• The Will maker’schildren;
• Dependent step-children;
• Grandchildren; and
• Parents (in special circumstances).

The duty to provide is not limited to those who need financial assistance. Many well-off claimants have received substantial payments from the estate for non-financial reasons, such as an acknowledgement of their place of belonging in the family. The amount of payment will vary in all the circumstances of the particular case.

2. Law Reform Testamentary Promises Act

The law allows a person who has performed some service or work for the deceased in return for a promise of reward in the Will to claim from the estate. The work provided and the promise to reward the worker in the will must be related to each other. The amount awarded will be confined to reasonable compensation for the work actually done for the deceased.

3. Property (Relationships) Act

The defacto partner or spouse of a deceased person can claim an equal share of relationship property instead of receiving whatever they were left in the Will.  If the survivor of the relationship is not bound by a Contracting Out Agreement and is not adequately provided for in the Will then a claim for a share of relationship property can be made.

4. Capacity

The Will-maker must be of sound mind when making the Will and they must not have been unduly influenced or fooled into making certain provisions in the Will.

If you want to leave your property in a way that differs from normal it is important to tell your lawyer why and to provide good evidence to back up those reasons. This will enable the Court to take those reasons into account.

It is common practice, especially if a company is entering into a contract, for an individual, possibly a director or shareholder of the company, to provide a guarantee.  This guarantee may be called upon if the company cannot pay its debts.

It is important that a guarantee is properly drafted and executed.  This includes ensuring that the guarantor signs the guarantee.  If the guarantee is not signed, or if it is not properly drafted, the guarantee may be unenforceable.

These examples demonstrate that it is essential to ensure that guarantees are correctly completed and signed.  Often guarantees are not signed or filled out correctly because staff are not aware of the significance of this paperwork.  Businesses need to ensure that staff have appropriate training in the importance of guarantees and how to fill the forms out correctly.

We are able to assist you with guarantees and can ensure that they are correctly drafted and appropriate for your situation.  If you want help drafting or reviewing a guarantee, or if you would like advice on how to ensure your paperwork is completed properly, feel free to call us on 0800 733 424.  We are also happy to organise training for your team members.

The employer immediately suspended the employee on full pay and carried out an investigation in which it found that the employee had injured the other employee and that his actions constituted serious misconduct.  He was dismissed.

The Authority agreed with the employer in so far as the investigation was concerned, and decided that the processes had been clear, correct and proper.  The Authority also agreed with the outcome of the investigation process and held that the employer was justified in dismissing the employee.

However, the Authority said that the employer should not have suspended the employee in the manner it did.  The employer suspended the employee without any process and without giving the employee an opportunity to comment or respond to the proposed suspension.  Being suspended, even on full pay, is a drastic action.  Despite the seriousness of the allegations, an employer must always carry out proper process and give the employee an opportunity to comment or respond before making a decision to suspend.

As a result of the improper suspension, the authority awarded the employee $1,000 compensation.

This case shows that no matter how serious the allegation, an employer is always required to carry out proper process and comply with employment law.

If you need assistance on this issue or on other employment problems, please call us on 0800 733 424 or check out our website www.raineycollins.co.nz

The employee had received a previous warning for excessive personal calls and emails some years previously that had expired*, plus several more recent concerns raised (without any formal process). 

The Employment Relations Authority was concerned that the data collected by the employer to show the alleged breaches was too old, and that 20 other employees had higher personal use than the employee dismissed.

It is very important that the information an employer uses to justify disciplinary action is:

1. Recent – it cannot be stored up for later use; and
2. Accurate – it must be carefully looked at to ensure it is correct.

The employer must also be consistent in their treatment of employees. If several are breaching policies on telephone, email, or internet use then all need to be investigated and dealt with appropriately.  The outcomes can differ due to the amount of use and previous warnings, but the policies need to be consistently applied.

Employers should have clear policies and enforce those.  If not, then they run the risk of not being able to act when they want to.  If you need help with your internet/phone policies or to know what to do when you suspect a breach, please give me a call on 0800 733 400.

*A Disciplinary warning does not last forever and will expire if a date is specified (e.g. 12 months) or when ever a sufficient period has passed that means it would not be fair to continue having the warning hanging over the employee. The length of time will depend on the circumstances and particularly the type of behaviour eg a warning for a physical assault will generally last longer than one for swearing.

Her employer had clear policies on the use of the staff discount card, and holding of items, which had been brought to the manager’s attention several times.

Her continued breaches of the policies meant that the employer had lost trust and confidence in her ability to read and conform to the policies.  The Employment Relations Authority upheld her dismissal because the policies were clear and the process followed had been fair and thorough.

If you need assistance putting in place clear policies for staff discounts/purchases or for dealing with breaches, please call Alan Knowsley on 0800 733 400.

Getting these right can be the difference between getting paid for the work you do and not. In a recent case a terms of trade allowed for all of the expected terms, including a personal guarantee of a company’s payment.  Unfortunately, the guarantee was unsigned and therefore not enforceable and the company was insolvent. In this case there was acceptance by the company of the contract but no written acceptance to be a guarantor.  It is vital to make sure that the contract is correctly completed before proceeding to do the work if you want to take the hassle out of getting your money out of the debtor’s bank and into yours where it belongs.

 We briefly cover each of the five elements below:

Offer

One party must make a clear offer to another party.  For example, if you offer to install a bath and shower for $2,000 there will be a series of communications between the parties which may result in an agreement.  These can be written or verbal or both.

Acceptance

Agreement is when one party accepts the offer.  For example, when the home owner agrees to the offer to install the bath and shower for $2,000.

The acceptance can be verbal or written but if the offer is made in writing and part of the offer requires acceptance to be in writing, then acceptance must be in writing.

Consideration

This is what each party agrees as their part of the bargain.  You offer to install the bath and shower.  The buyer agrees to pay you $2,000.

Intention to create legal relations

In order for there to be an enforceable contract there must be an intention between the parties to enter into a legally binding agreement.  Usually the existence of an agreement with sufficient consideration will be enough. 

In the bath/shower installation example, a clause which says that the contract is not binding unless signed by the parties means that until they both sign there is no intention to be bound.

Certainty

The terms of the contract must be certain.  Terms that must be certain include those of consideration, what the contract is for, and how the contract will be carried out and when.  For example: the bath/shower model, the price, and the details and date of installation.

The terms should be expressly agreed, but in certain circumstances terms will be implied.  For example: that the bath and shower would be in as new condition (unless 2^nd hand was specifically agreed).

The importance of a contract

It is important to ensure that anything intended to be an enforceable contract has all five of these elements.  Contracts can be verbal but if verbal you can end up with disputes as to the agreed terms.  Putting the terms in writing and getting written acceptance makes the terms easier to prove and enforcement much more likely.

Terms of trade will usually provide much more detail and protection for you when contracting to provide your plumbing services.

The Construction Contracts Act (“the CCA”)

The CCA applies to all construction work – which is defined to include plumbing.  It is not possible to contract out of the CCA.  If any contract attempts to contract out then that provision of the contract will not apply. 

There are different provisions for commercial and residential contracts but the CCA applies to all agreements made verbally, in writing or partly in writing and partly verbally.  This means that if there are any disputes as to what was agreed, to the quality of the work, or to the price, then the dispute resolution provisions in the CCA will become available to either party to settle the dispute.  This will be the case whether the agreement was made in writing or verbally.

How we can help

If you need help putting together your terms of trade, ensuring that they provide what you want them to, or if you have any other contractual issues then call us on 0800 733 444.

The company had failed to adequately identify, and then eliminate, isolate or minimise, the risks of injury.

The Court said that the offending was serious and a deterrent sentence was necessary. 

To avoid ending up with a hefty fine and other costs make sure your processes for indentifying hazards are up to date.  Then take all practicable steps to eliminate, isolate or minimise the risk of harm arising. 

You can download our simple-to-follow Safety Action Plan from our website www.raineycollins.co.nz or call me on 0800 733 400.

The employee was in charge of financial transactions and banking.  Over several years he diverted funds into his own account and got away with it due to the employer’s failure to have checks in place on money coming in and out.

There are steps you can take to minimise the opportunities for fraud by an employee.  For our free Guideline to avoid Fraud either download from our website at www.raineycollins.co.nz or call me on 0800 733 400.