NEW ZEALAND Trends and Developments Contributed by: Alex Neal, Violet Yu, Sandy Chen and Jonathon Russell, Cone Marshall Limited
Digital Assets There is increasing discussion and awareness around asset and estate planning of digital assets, which are becoming more integrated into a New Zealander’s life. Individuals are beginning to realise and be educated that digital assets include more than just cryptocur - rencies and non-fungible tokens. Social media pro - files, digital files on the cloud, subscriptions, and even credit from an airline, come under the wide umbrella of digital assets, which is usually not defined in a stand - ard will precedent. Extra care and consideration may be needed when planning for what is to happen to these digital assets after death. New Zealanders are also diversifying their portfolios into digital assets such as cryptocurrency, and New Zealand courts do recognise cryptocurrency as legally “property” that can be part of the estate and disposed of by testamentary wishes. However, not all individuals are suitable to be executors or administrators of digital assets, given that the safe possession and storage of digital assets require specialised knowledge and skill. Discussions are underway about the appointment of a separate digital executor who may be better versed in technology to navigate through various platforms to administer digital assets after the will-maker’s death. Legislation regulating estate planning and estate administration such as the Wills Act 2007 and the Administration Act 1969 were enacted with little to no consideration of digital assets, and technology is advancing much faster than legal frameworks can keep up. Therefore, the approach to estate planning for digital assets also needs a tailored approach. Fur - thermore, given the frequency of multi-jurisdictional considerations when it comes to digital assets, there are increasingly more collaborations between legal practitioners of different jurisdictions and specialised fiduciary service providers.
entities including the trustees of the Trust both in their capacity as trustees and in their personal capacity. At the District Court level, it was held that the trust could not be charged as a person. The High Court agreed that the trust is not a person but held that the trustees collectively could be a “body of persons”. On appeal to the Court of Appeal, it was held that a trust can be a “person” for the purposes of the Health and Safety at Work Act 2015 as the legislation’s definition contemplates a wide range of unincorporated bodies, which should also include the trustees as a collective. The Court of Appeal was met with a dissenting judg - ment which disagreed that the trust is a person but held that the charges should be made against the trustees only in their capacity as trustees, which would allow the trustees to be indemnified from the trust property, rather than the charges being directly against the “trust” as a person. The judgment is controversial because instinctively a trust is not considered a legal person, unless there is clear legislative intention to treat a trust as a legal per - son, which is arguably not the case under the Health and Safety at Work Act 2015. However, it is a reassur - ing judgment to those acting as trustees to know that they are unlikely to be personally prosecuted under the Health and Safety at Work Act 2015. In any event, it is important for trustees of trusts who hold com - mercial properties and operate a business to commit to sound business practice in relation to work health and safety.
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