Morris presents at TLANZ's Estate Planning Conference

Bethan Read today presented at The Law Association of New Zealand's 2026 Estate Planning Conference. TLANZ's annual conference is one of the highlights in the estate planning CLE calendar and brings together industry leaders, who this year presented on a range of topical issues on the theme of conflict and independence.

Bethan presented on "Section 21 agreements - the potential to derail asset planning". Agreements under s 21 of the Property (Relationships) Act 1976 (PRA) are becoming increasingly common in New Zealand. These agreements allow partners and spouses to contract out of the default relationship property regime and define how their property is to be divided on separation or death. However, the focus of these documents is often separation and they are frequently overlooked in the estate planning process. Bethan considered how failing to integrate these agreements into estate planning can produce unintended consequences, ranging from a surviving partner receiving significantly more or less than intended to costly litigation that depletes the estate.

Bethan began by examining the statutory framework governing relationship property rights on death. Under Part 8 of the PRA, a surviving partner is given a choice under s 61 between two options: option A, which involves applying for a division of relationship property as if the relationship ended immediately before death, or option B, which means the survivor does not seek a PRA division and instead receives their entitlements under the deceased's will or on intestacy.

Bethan then provided a detailed analysis of the landmark case of Rimmer v Wilton [2025] NZCA 374, which is currently before the Supreme Court. The case involved a de facto couple who had entered into a s 21 agreement governing their relationship property, including a life occupancy right for the survivor. When one partner died intestate, the surviving partner elected option B and claimed both her entitlements under the s 21 agreement and her statutory intestacy entitlements. The deceased's children challenged this, arguing that she could not take both. The High Court found in the survivor's favour, and the Court of Appeal upheld that decision, holding that electing option B does not prevent a survivor from also relying on a s 21 agreement. Considering the question of whether the couple had contracted out of the intestacy provisions in the Administration Act 1969 in the agreement, the Court of Appeal held they had not, emphasising that clear words would be necessary in an agreement if the parties intended to override the mandatory intestacy provisions. An appeal has since been heard by the Supreme Court.

Bethan then turned to the practical implications for practitioners, outlining key drafting principles for both s 21 agreements and wills. Bethan emphasised the importance of ensuring these documents were prepared in conjunction with the other. For s 21 agreements, Bethan explained the importance of clearly stating whether the agreement applies on death, separation, or both, and ensuring that the property outcome on death is defined with precision. Bethan also recommended addressing the s 61 election directly in the agreement and including wording to address whether the couple agreed to disclaim any rights under intestacy to ensure the s 21 agreement's provisions could not be displaced. For will drafting, Bethan emphasised that wills should be prepared to dovetail with the s 21 agreement, and include executor conflict provisions.

Finally, Bethan discussed the conflict of interest risks that arise when a surviving partner is also appointed as executor or administrator. Rimmer v Wilton starkly illustrates these risks, as the surviving partner distributed substantially all of the estate to herself based on her own interpretation of the agreement, giving rise to allegations of breach of fiduciary duty and a decade of litigation. Bethan recommended the appointment of independent executors, particularly in blended family situations or where complex death provisions require interpretation, and advised that this appointment should ideally be made at the point of estate planning rather than after death.

Please get in touch with Morris if you would like advice on s 21 agreements or estate planning.