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Estate

Trusts can protect assets

Criminal Law, Estate, Estate Planning, Property Law, Trust Law, Wills & Estates
0

But they cannot ring fence assets derived from fraud

On 26 March 2021, John Bracken was convicted of New Zealand’s largest GST fraud having fraudulently obtained $17,311,262.29 in GST refunds over a period of four years.

On 23 February 2026, the Commissioner of Police applied to the High Court for a profit forfeiture order over property in which Mr Bracken had an ‘interest.’ In other words, the Commissioner sought to recover assets unlawfully obtained from Mr Bracken’s criminal activities.

The most valuable assets acquired from Mr Bracken’s criminal activities, however, were held by the Bracken Family Trust and not himself personally.

Despite this, under the Criminal Proceeds (Recovery) Act 2009 (CPRA), the court determined that the trust must forfeit $13 million of its own assets in response to Mr Bracken’s offending as he had an ’interest’ in the trust property.

 

Criminals may not profit from their actions

For the court to make a profit forfeiture order, it had to be satisfied that Mr Bracken had ‘unlawfully benefited from significant criminal activity’ and that he had ’interests’ in property.

It was quite clear that Mr Bracken had unlawfully benefitted from a significant criminal activity, so the question turned to whether he had an ‘interest’ in the trust’s property.

Discretionary beneficiaries cannot usually be said to have an ‘interest’ in trust property, because the property is legally owned and controlled by the trustees, not the beneficiaries. Discretionary beneficiaries do not have a legal right to the trust’s property, only a hope that the trustees might decide to distribute something to them, or that they will receive what is left when the trust comes to an end.

The Bracken Family Trust was unusual though, because Mr & Mrs Bracken had reserved a lot of power to themselves: they were settlors, trustees, discretionary beneficiaries, final beneficiaries and, as ‘Principal Family Members’, had the power to remove beneficiaries, and appoint and remove trustees.

Moreover, under the CPRA, an ‘interest’ in relation to property is much broader than simply owning something. It includes not only a legal or equitable interest in property, but also a right, power or privilege connected with the property.

In addition, the court can treat having ‘effective control over property’ as an ‘interest in property.’ As a part of this analysis, the court can have regard to ‘any trust that has a relationship to the property.’

The court determined Mr Bracken had both:

  1. An ’interest’ in the trust property both because he was a final beneficiary of the trust and due to his powers as a ‘Principal Family Member,’ and
  2. Effective control over the trust property, which was also due to his powers as a ‘Principal Family Member’ and that he was a trustee.

After much complex legal argument, the profit forfeiture order was granted with a maximum recoverable amount of $16,019,231.16, around $13 million of this was trust-owned property. The trust could retain the family farm (valued at $3.780 million), as this would allow the innocent beneficiaries to continue to benefit from this generational family asset. All the other remaining trust property was to be forfeited.

 

Trusts cannot shield ill-gotten gains

This case shows that while well-drafted trusts remain valuable and legitimate estate planning tools, they cannot be used as a shield for assets that have been acquired through crime – particularly in cases where the perpetrator has retained so much power over the trust assets that such power is tantamount to property (or an ‘interest’).

The court’s decision was said to be a strict statutory interpretation exercise, and there are clearly legitimate policy (and societal) reasons behind the CPRA having such a strong stance. It remains to be seen, however, whether a case involving a trust over which a criminal has few or no powers would result in the same outcome.

This case shows an intriguing relationship between statutory intervention and orthodox trust principles – giving us much to ponder.

 

 

DISCLAIMER: All the information published in Trust eSpeaking is true and accurate to the best of the authors’ knowledge. It should not be a substitute for legal advice. No liability is assumed by the authors or publisher for losses suffered by any person or organisation relying directly or indirectly on this newsletter. Views expressed are those of individual authors, and do not necessarily reflect the view of Edmonds Judd. Articles appearing in Trust eSpeaking may be reproduced with prior approval from the editor and credit given to the source.
Content Copyright © NZ LAW Limited, 2026.    Editor: Adrienne Olsen.       E-mail: [email protected]      Ph: 029 286 3650

When a DIY will goes wrong

Estate, Estate Planning, Legal Advice, Wills & Estates, Wills & Probate, Wills & Trusts
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Seemingly small mistake brings significant consequences

Most people would never expect a Do It Yourself will, bought from a stationery shop to end up before a High Court judge. Yet that is exactly what happened in Oga v Bourne,[1] a recent case that shows how a seemingly small mistake in a will can have significant consequences after the will-maker dies.

 

The DIY will

Joan Bourne completed a shop-bought DIY will kit in 2017 with the assistance of her daughter. Joan wanted her estate to be divided equally among seven of her eight surviving children. She deliberately excluded one son, who had previously indicated that he did not wish to inherit from her estate.

Like many people using a DIY will kit, Joan and her family encountered legal terminology they did not fully understand. They believed the ‘bequests and legacies’ section was where they should list the people who were to inherit the estate. They therefore wrote the names of the seven intended beneficiaries in that section; however, they left blank the section dealing with the ‘residue’ of the estate because they did not understand what it meant and it didn’t make sense to them to list everyone’s names twice.

Unfortunately, this seemingly minor mistake created a significant legal problem.

In legal terms, a ‘bequest’ usually refers to a specific gift, while the ‘residue’ is everything left in an estate after debts, funeral expenses, administration costs and any specific gifts have been dealt with. As Joan had listed only the beneficiaries’ names without specifying any gifts, and had left the residue clause blank, the will did not effectively dispose of her estate.

 

High Court application

After Joan died in 2022, her executors could not get probate of the will, so they had to apply to the High Court under the Wills Act 2007. They asked the court either to interpret the will or to correct it so that it reflected Joan’s true intentions.

Joan’s family members and the witnesses who were present when she signed the will all gave evidence that she intended her estate to be shared equally among seven of her eight children. Even the excluded son confirmed that he did not expect to inherit and supported the application.

The court found that simply interpreting the wording of the will would not solve the problem because putting the names in the wrong section made the clauses effectively meaningless. However, the court was satisfied from the evidence that Joan’s actual intentions were clear, and the will failed to give effect to them. Using its powers under the Wills Act 2007,[2] the court corrected the will by replacing the defective clauses with one directing that the residue of Joan’s estate be shared equally among the seven intended beneficiaries.

 

Why was this case unusual?

It is important to understand that the court does not have a general power to correct wills simply because a mistake has been made. Before correcting a will, the court must be satisfied that there was a clerical error, or that the will did not give effect to the will-maker’s instructions (where the will was prepared by someone else). In this case, the applicants argued that the will did not give effect to Joan’s instructions. The court may then correct the will to carry out the will-maker’s intentions. This requires reliable evidence of what they intended. In many cases, particularly where family members disagree or no one can clearly explain what the deceased intended, that evidence may not exist. In those circumstances, an incorrectly prepared will may not be capable of being fixed.

While in this case the outcome ultimately reflected Joan’s wishes, it came only after court proceedings, significant legal costs and considerable delay. More importantly, this result was unusual. The court was able to correct the will because there was compelling evidence of what Joan had intended. Multiple witnesses gave consistent accounts of Joan’s intentions, every interested family member agreed, and even the excluded son supported the application.

 

Lessons

The decision highlights several important lessons for anyone wanting to make a will. Legal documents often contain technical terms that have specific legal meanings, even though the words themselves may seem familiar. A misunderstanding of terms such as ‘bequest’ or ‘residue’ can have significant consequences.

While DIY will kits can produce legally valid wills, they rely on the person completing them to understand how the document works. A simple mistake may not become apparent until after the will-maker has died – when it is all too late.

This case also illustrates that what appears to be a saving at the outset can become a much greater expense later. While having a will professionally prepared involves an upfront cost, unclear drafting can result in litigation, delays in administering an estate and legal costs that far exceed the cost of obtaining legal advice.

More importantly, disputes over a will can place additional emotional strain on grieving families at a time when certainty and clarity are needed most.

For most people, making a will is one of the most important legal decisions they will ever make. While DIY will kits remain an accessible option for many people, Oga v Bourne is a timely reminder that preparing a will is not simply about filling in a form.

Spending a little more time – or obtaining professional advice where needed – may save your loved ones from costly litigation, unnecessary uncertainty and additional stress after you are gone.

 

[1] Oga v Bourne [2025] NZHC 3685.

[2] Section 31.

 

DISCLAIMER: All the information published in Trust eSpeaking is true and accurate to the best of the authors’ knowledge. It should not be a substitute for legal advice. No liability is assumed by the authors or publisher for losses suffered by any person or organisation relying directly or indirectly on this newsletter. Views expressed are those of individual authors, and do not necessarily reflect the view of Edmonds Judd. Articles appearing in Trust eSpeakingmay be reproduced with prior approval from the editor and credit given to the source.
Content Copyright © NZ LAW Limited, 2026.    Editor: Adrienne Olsen.       E-mail: [email protected]      Ph: 029 286 3650

Karen’s Next Chapter: Understanding Reverse Equity Mortgages

Estate, Financial Literacy, Home Ownership, House, Retirement Planning, Senior Living, Uncategorized
0

 

Once upon a time in a quiet New Zealand neighbourhood lived Karen—a warm-hearted retiree whose home was her greatest treasure. Every corner of it held memories: family dinners, garden mornings, and decades of life’s twists and turns.

 

But as time went on, Karen found herself wishing for a little extra breathing room…

🌼 A long-overdue renovation

🚗 A reliable new car

🩺 Extra funds for health and comfort

✈️ Or perhaps that long-dreamed-of holiday to somewhere sunny

 

One afternoon, over a cup of tea, Karen heard a gentle whisper of possibility:

“What about a reverse equity mortgage?”

 

Banks—especially Heartland Bank—offered something that caught Karen’s attention: a way for homeowners aged 60+ to unlock some of the value in their home without selling it and without monthly repayments.

 

It felt almost magical. A way to stay in her beloved home while gaining the financial support she needed.

 

But Karen was clever. She knew every good story has fine print.

✨ The interest would quietly grow over time,

✨ The loan would wait patiently until she moved, sold, or passed on,

✨ And then it would be repaid from the value of her home.

 

It could be a helpful choice—but it also meant leaving less equity behind for her family.

 

So Karen did what wise people do:

🗝 She talked openly with her loved ones

📜 She met with a solicitor to understand every detail

❤️ She made her decision with clarity and confidence

 

And in the end, Karen discovered that with careful thought and the right guidance, a reverse equity mortgage could be the solution she needed for her next chapter.

Georgia Ellen 

Blending Families, Protecting Futures

Blended Families, Contracting out agreements, De Facto Relationships, Estate, Estate & Inheritance Planning, Family Law, Family Protection Act, Legal Life Planning, Property & Asset Protection, Relationship Property, Storybook Series, Wills & Succession
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It had been eight long months since Sally separated from Luke, and things were looking up. She and Luke had amicably split, agreed on the division of relationship property, and settled child support issues. These were a weight off her shoulders, but single life had its challenges.

 

She noticed that she did not see the benefit of bulk grocery purchases or split utilities bills. Sure, child support helped, but things were still tough. She had heard of the “singles tax” but seeing it in action was another thing altogether.

At the recommendation of her colleague, Lucinda, Sally decided to get back into the dating scene. Luke fully supported her in this and even agreed to take the kids during his week so that she could meet with the rather dashing Emilio.

Emilio had a similar background. He was freshly divorced and had four children who split their time between their mother in Spain, and with Emilio in New Zealand.

 

The relationship was going well. So well in fact that Sally decided to approach Emilio about moving in together.

 

“Mi amor”, Emilio began. “I love the idea of moving in with you. I agree that we are ready for that step. However, I want to broach an issue with you. A rather uncomfortable issue”.

 

“What is it, Emilio?” Sally asked.

 

“You see, I have four children of my own. My Estate is more modest since the divorce, but I still have considerable assets. I want to protect my children’s future, and in order to do that, I must protect my assets from any potential claims made by you or your children” Emilio explained.

“Oh, I see” Sally said. “I don’t think that’s a bad idea. I too want to protect what I have. I wouldn’t want to split our collective property five ways between my one child and your four children – that doesn’t seem fair”.

 

The couple agreed that they would go and talk to a lawyer about their estate planning.

 

Their respective lawyers explained that with blended families, there could be overlapping claims under the Family Protection Act. If Emilio and Sally each continued into a de facto relationship, then the presumption of equal sharing would likely apply. At the same time, Emilio and Sally each had a moral responsibility to provide for their children.

 

Emilio and Sally decided to enter into a contracting out agreement, to protect their respective assets. They then agreed to sign their own Wills, which reflected the provision in the contracting out agreement that neither of them would make a claim against the other’s estate.

 

Emilio and Sally could relax into their life together, knowing that they had a succession plan that was tailored to their individual needs, so that they didn’t have to worry about any headaches down the road.

 

Jamie Graham

GST and land transactions

Business & Investment, Commercial, Employment, Estate, Fair Trading, Financial Services Regulation, First Job
0

Understanding your tax obligations

 

If you are buying or selling land (with or without a home on the section), it is important to have an accurate understanding about your tax obligations and whether GST will be applicable to your transaction.

GST is not typically applicable in residential sale and purchase transactions but, if you are GST-registered and the sale is part of your taxable activity, GST may apply.

Potential GST outcomes

If the buyer and seller are both GST-registered, the transfer of land is part of a taxable activity (for example: farming, or a commercial building), and the property is not used as a private residence, the transfers are typically zero-rated for GST (meaning GST is charged on the transaction at a rate of 0%).

If the buyer is GST-registered and the seller is not GST-registered, and the buyer intends to use the land as part of a taxable activity, the buyer may be able to claim GST.

If the seller is GST-registered (and claimed GST) and sells the land to a buyer who is not GST-registered, or does not intend to use the land as part of a taxable activity, the seller may need to return GST to Inland Revenue following the sale.

There can be additional complications where some part of the property is used for private purposes, and some part is used for a taxable activity. In this instance, some of the purchase price may be subject to GST, but some part of it may not.

Warranty as to GST status

The standard sale and purchase of real estate agreement contains a statement on the front page – ‘the vendor is registered under the GST Act in respect of this transaction and/or will be so registered at settlement.’

If you are GST-registered and the sale is a taxable supply, you will need to complete schedule one in the agreement. As a seller, you will need to tick either ‘yes’ or ‘no’ to this statement. You must provide a warranty that the answer you provide is correct and will remain correct as at settlement. If it later transpires that your answer was incorrect, you have breached a warranty and could be liable to the buyer for any losses they have suffered because of this breach. For example, if you provided a warranty that you were not GST-registered in relation to the transaction, the buyer may presume that they may claim GST from Inland Revenue following settlement if they will be GST-registered and intend to use the property for taxable supply. If you were, in fact, GST-registered, the buyer will not be able to do that, therefore you may be required to reimburse 15% of the purchase price to the buyer due to your breach of warranty.

If you are the buyer, the agreement contemplates your GST status potentially changing throughout the transaction. For example, you may initially sign the agreement in your personal name (and you are not GST-registered) and later you nominate a GST-registered company to complete the purchase.

The purchase price will be expressed as either ‘plus GST (if any)’ or ‘inclusive of GST (if any),’ which dictates how much you need to pay on settlement, depending on your GST status. It should be clear to all parties whether the buyer will be GST-registered on settlement date, as this can have GST implications for both parties.

Purchase price allocation

If GST is applicable to the transaction, you should consider whether you should agree with the other party on a purchase price allocation; completing a purchase price allocation is highly recommended in some situations since GST may be claimable on some items, but not others.

If the buyer and seller agree on a purchase price allocation in the agreement, this allocation must be used by both the seller and buyer when completing their respective tax returns. This provides certainty to both parties. The purchase price allocation can therefore have tax consequences for both buyer and seller, so it is important to get accounting advice on this allocation before signing the agreement.

Where to from here?

If GST is (or may be) applicable to your transaction, it is important that you get legal and accounting advice before signing the agreement. A mistake in the agreement cannot always be fixed by your professional advisers after signing; it could result in an unexpected GST bill, which can be very costly. We and your accountant will work together to ensure that the sale and purchase agreement accurately reflects your GST position and that you fully understand any potential tax consequences before signing the agreement.

 

 

 

 

[1] Purchase price allocation is where the price is allocated between the land and any buildings, and other fixtures, fittings, chattels or improvements.

DISCLAIMER: All the information published in Property Speaking is true and accurate to the best of the authors’ knowledge. It should not be a substitute for legal advice. No liability is assumed by the authors or publisher for losses suffered by any person or organisation relying directly or indirectly on this newsletter. Views expressed are those of individual authors, and do not necessarily reflect the view of Edmonds Judd. Articles appearing in Property Speaking may be reproduced with prior approval from the editor and credit given to the source.
Copyright, NZ LAW Limited, 2022.     Editor: Adrienne Olsen.       E-mail: [email protected].       Ph: 029 286 3650

 

Life Stage – First Home

Economy & Finance, Employment, Estate, House, Media, News, Online, Uncategorized
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It felt like Bob’s life had been turned upside down. Not only had his father, Steve, passed away recently leaving him upset and overwhelmed, but his burger bar business was also struggling. Bob had put all his life savings into his burger bar, which he opened 6 months prior. Further adding to the stress, Bob currently did not have a home. He had been couch-surfing at friends places while he saved up enough to rent a place of his own.

 

After a few difficult months, Steve’s estate was finally settled. As one of the beneficiaries, Bob received a substantial inheritance. Though the money offered some relief, Bob knew he needed to use it wisely. His first step: finding a home. He realised that in order to take care of his business and himself, he needed a stable place to live and rest, putting him in a better frame of mind to make smart business decisions.

 

As Bob now had more funds than he had expected to receive from years of working, he decided this was the right time to buy a property rather than rent. He browsed listings on local real estate websites and soon found a small, tidy place in a quiet neighbourhood—within his budget and close to his burger bar.

 

He decided to call his lawyer and ask for the things he should consider before making an offer. His lawyer guided him through several key considerations:

 

  1. Conditions in the Sale and Purchase Agreement: He needed to decide whether he wanted to include conditions in the agreement. He already had the funds available for the purchase so he did not need to make it conditional on finance. Bob did not realise that he could also include other conditions such as a LIM report, builders report, and toxicology report. Bob decided to include each of these as it was better to make sure there were no big issues before being locked in a deal.

 

  1. KiwiSaver: If Bob has KiwiSaver funds, he would need to fill out an application to withdraw the funds from his provider. He would need a solicitor to witness him signing this as it could not be left until the last minute.

 

  1. Insurance: The lawyer stressed to Bob the importance of checking he could obtain insurance cover for the property prior to going unconditional. Also, if there were any issues under the builders report / LIM report / toxicology report, he would need to disclose said issues with his insurer.

–

  1. Relationship Property: Bob had not had the time to date with everything going on but was made aware to obtain advice in this regard once he had a partner in the future.

 

Bob took all the advice into consideration and obtained all recommended reports. Within weeks, his purchase when unconditional, and weeks after, settled.

 

Bob was beyond happy, he now felt as though he had the stability he had been searching for. This feeling lasted only a few minutes though as Bob was about to receive a call in relation to his business that would change everything…

 

 

Macayla Brdanovic 

 

 

Estate Planning and the Unexpected: A Family Law Story

Employment, Estate, Health Issues, House, Latest news, Social Media, Trusts
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A tear trickled down Luke’s face as the hearse carrying his late father, Steve, drove away from the funeral home and down the road. It had been a beautiful service and his brother Bob, who owned a burger bar, provided some excellent catering. Steve had been a wonderful father, and had prepared for this moment by getting his Will and Enduring Power of Attorney sorted out nice and early.

As Steve’s executor, Luke immediately set about administering his father’s estate. It was an immense job, so he enlisted the assistance of Edmonds Judd. They met with him and explained the administration process and gathered from him an idea of Steve’s assets and liabilities. They applied to the High Court for Probate and contacted the banks, insurers and real estate agent on Luke’s behalf. They found the odd liability, such as a small credit card debt, and closed any outstanding accounts.

Luke was relieved. This was starting to look easy!

He put down the phone after talking to his helpful solicitor and poured himself a nice cup of tea. Then, just as he was sitting down, he heard a knock on the door.

“Who could that be?” he wondered aloud. He wasn’t too surprised, as he had had many callers recently offering their condolences. He was surprised however, to open the door to see himself staring back at him. Luke blinked in surprise.

“Luke”, the doppelganger said. “I am your brother. Your long-lost twin brother, as a matter of fact. I was adopted when we were just babies. I’m guessing from the look on your face that Steve never told you?”

Luke was shocked. The stranger was indeed identical to him, right down to the freckles on his nose and the way he turned up the cuff on his jeans. The stranger continued.

“My name is Han, and it’s nice to meet you. Listen, I know this is awkward timing, but my understanding is that Steve left behind a sizable estate. I’m going to need to some of that money, as I have significant gambling debts I need to pay off. That won’t be a problem, right? After all, it’s only right that I get a slice of the pie”.

Luke invited Han in for a drink, and pondered what to do next. Once Han had taken a few old photos of Steve and left, Luke picked up the phone and called his solicitor back, explaining the whole thing. His solicitor was very helpful.

“You see Luke, sometimes children who are left out of their parent’s Will can make a claim under the Family Protection Act 1955. The law says that parents have a moral duty to provide for their children. However, because Han was adopted out as a child, he won’t be able to successfully make a claim. The Adoption Act 1955 changes the legal relationship between adopted child and birth parent. Steve did not have to provide for Han in his Will”.

“I don’t know,” said Luke. “Is it really fair that Han not get anything out of the Estate?”

“Well, if you and the other beneficiaries of the Estate feel that way, you can enter what’s called a Deed of Family Arrangement”. It would record that the beneficiaries have come to an agreement to do something different to what’s in the Will, and that would allow us to make a distribution to Han. You would need to get all of the beneficiaries to agree, though”.

Luke thanked his solicitor and hung up the phone. He had a lot to think about. He decided to give his brother Bob a call, to see what he thought. But Bob was having his own problems at his burger bar…

 

Jamie Graham

Steve’s Big Decision: He’s ready for the next chapter – Retirement

Estate, Health Issues, House, Kids, Latest news, Media, Property, Relationships, Retirement
0

Brought to you by Edmonds Judd – Your Life Your Lawyers

 

Steve has spent the last 45 years building a life he was proud of—raising a family, growing his business, and working hard every step of the way. But now, for the first time in decades, he was thinking about something new: retirement.

 

The thought was both exciting and overwhelming. Should he downsize to a smaller home? Maybe move into a retirement village? What about his Will—did he have one and if so, was it up to date? And who would make decisions for him if one day he couldn’t?

 

That’s when Steve decided it was time to talk to someone who understood the journey ahead—someone who specialised in elder law.

 

At Edmonds Judd, Steve found the guidance he needed. The team took the time to sit down with him, listen to his concerns, and explain everything. This helped Steve put a clear, confident plan in place—updating his Will, setting up Enduring Powers of Attorney, and walking through the legal details of retirement village living. Most importantly, they made sure Steve’s wishes—and his family—were protected.

 

Steve created an estate plan that matched his life now—not the one he had twenty years ago. Steve knew that his family would be protected, and that his wishes would be carried out no matter what the future held.

 

He learned that retirement planning wasn’t just about money—it was about peace of mind.

 

“It’s not just legal paperwork,” Steve told his children Luke and Sally one evening, “It’s making sure you’re all taken care of, no matter what.”

 

Thanks to Edmonds Judd, Steve now looks forward to his next chapter in his life with confidence and clarity.

Rachael Beattie

Emissions Trading Scheme

Commercial, Employment, Estate, First Job, Health Issues, Online, Property
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A change in approach?

The Emissions Trading Scheme (ETS) will turn 17 years old in September. An integral part of the Climate Change Response (Emissions Trading) Amendment Act 2008, the ETS has undergone significant change throughout its existence.

 

What is the ETS?

The ETS is New Zealand’s main tool for reducing greenhouse gas emissions. It essentially works by requiring participating businesses to measure and report on their greenhouse gas emissions. Businesses that participate in the scheme must surrender what is known as an ‘emissions unit’ for each tonne of carbon dioxide that they emit. One tonne of CO2 will cost you one emissions unit.

Over time, the government will reduce the number of units that are supplied into the ETS. The effect of this is that emissions units increase in demand as participating businesses buy and sell emissions units from each other. The price of emissions units in the ETS will (in theory) trend upwards, helping New Zealand to steadily move towards the goal of being a net zero emitter of greenhouse gas by 2050.

 

Recent developments in the ETS

There has been some concern regarding the conversion of productive farmland into forestry in order to gain emissions units. The government has announced changes to the ETS; its aim is to strike a balance between achieving New Zealand’s climate goals, and protecting the longevity of our most profitable farmland.

The government has signalled that the proposed changes to the ETS will be formally introduced to the House this year, with the new rules expected to come into force by October 2025.

 

All trees created equal?

The most significant proposed change to the ETS is the temporary prohibition of the registration of exotic forestry (non-native) for emissions units on Land Use Capability (LUC) 1–5 farmland. LUC separates land into eight categories based on an assessment of the land’s capability for use. LUC Class 1 land is the most versatile, with LUC Class 8 land being the least versatile.

At present, any tree can be planted on any farmland to earn emissions units (provided the tree species planted can reach at least five metres in height). This means there is no incentive to prioritise the planting of native trees over the planting of exotic species, such as the Radiata pine.

The proposed changes will also require ETS participants to exercise greater discretion in choosing which areas of farmland to plant on; should you wish to plant an exotic species, you must do so on your less productive land.

 

A flexible approach

The proposed rules are not entirely hard and fast as there is some wriggle room for ETS participants. Up to 25% of LUC Class 1–6 land on a farm can be used to plant exotic forestry for the purpose of registering it under the ETS.

The proposed new rules have also scrapped plans to include agricultural processors (meat processors, dairy processors, nitrogen fertiliser manufacturers and importers, live animal exporters) in the ETS. Agricultural processors had been due to enter the ETS from 1 January 2025, but the passing of the Climate Change Response (Emissions Trading Scheme Agricultural Obligations) Amendment Bill on 26 November 2024 has stopped this.

 

Why the changes?

The proposed changes clearly signal the government’s desire to promote the planting of native species. It appears, however, that consideration has been given to the idea that ETS participants have benefitted from the planting of exotic species that can be planted en masse and grow quickly. This practice will remain, with the caveat being that it will need to take place on less productive farmland.

A loved one has lost capacity, now what?

Employment, Estate, First Job, House, Kids, Media, News, Property, Relationships, Retirement
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What happens if your loved one loses mental capacity due to illness or accident?  Who will make decisions about whether they need to go into care?  Who can manage their finances to pay for their medical costs and living costs?

 

Hopefully your loved one has enduring powers of attorney in place appointing people to make decisions about their welfare and property.  But what if there are no enduring powers of attorney?

 

In that case, you will need to apply to the Family Court for orders under the Protection of Personal and Property Rights Act 1988 (PPPR).  There are various types of court orders that can be made appointing one or more people to manage someone else’s affairs.  Deciding which court orders to apply for depends on the circumstances and needs of the person who has lost capacity.

 

Before applying to the court, you should be aware of the strict legal obligations and responsibilities you will have if appointed, and that the court will have ongoing oversight to ensure affairs are being managed appropriately.

 

While it may cost a few hundred dollars to get enduring powers of attorney while someone is healthy, it can cost a few thousand dollars to get court orders if  they lose capacity there are no enduring powers of attorney in place.  So, it is a good idea to encourage your loved ones to get enduring powers of attorney while they are still healthy.

Kerry Bowler, Solicitor Kerry Bowler

Get in touch today, we’d love to talk.

+64 7 872 0236 [email protected]