NEW ZEALAND Law and Practice Contributed by: Greg Ambler and Elizabeth Heaney, Tompkins Wake
Whether or not a person’s parents were married at their conception or birth has no implications on suc- cession rights in New Zealand law. Polyamory The 2023 New Zealand Supreme Court case of Mead v Paul dealt with property rights in polyamorous rela- tionships. The central issue determined in this deci- sion was whether the Property (Relationships) Act 1976 could extend the definition of a relationship to include polyamorous relationships. It was held that while a triangular relationship could not qualify under the PRA, the polyamorous relationship may be sub- divided into multiple qualifying relationships for the purposes of the PRA. The majority judgment agreed that a triangular rela- tionship could not come under the protection of the PRA. However, the court could subdivide the rela- tionship into multiple relationships. This is the “vee” arrangement, where one party is married to another while simultaneously in a de facto relationship with another, third party. 11.2 Conflicts and Divergent Laws Conflicts do arise where family relationships are rec- ognised differently overseas, particularly concern- ing marriage, civil unions and de facto partnerships. New Zealand resolves these conflicts by applying its own statutory definitions of relationships under the Property (Relationships) Act 1976 and related legisla- tion, recognising foreign marriages where valid, and using conflict of law principles to determine when foreign orders or relationships should be recognised. Unless a party successfully protests jurisdiction, New Zealand law governs succession and relationship property rights in respect of New Zealand situated property, even if a relationship is defined differently under foreign law. 12. Cross-Border Succession Planning 12.1 Taxation of Cross-Border Estates and Transfers Foreign Orders When a person dies overseas leaving assets in New Zealand, their New Zealand estate does not
vest until administration is obtained in New Zealand. If probate or letters of administration were granted overseas, they must be resealed in New Zealand for the executor to act, and once resealed, they have the same effect as if issued by the New Zealand High Court. Resealing is available only for grants from Commonwealth countries, the Republic of Ireland and Hong Kong. For all other jurisdictions, a new New Zealand application for probate or administra- tion is required. Foreign Wills A will made overseas is treated as valid in New Zea- land for movable property if it complies with the law of the place where it was made, the will maker’s domicile when it was made, the law of their domicile of origin or the law of their domicile at death. Likewise, a will made in New Zealand is valid for movable property if it meets the requirements of New Zealand law or the law of the will maker’s domicile when made or at death. A change of domicile after the will is made does not revoke it as it relates to movable property in New Zealand. If a person dies overseas owning assets in New Zealand, their New Zealand estate does not vest until New Zealand administration is obtained, and any foreign probate or administration must be resealed in New Zealand (or a new New Zealand probate obtained) before it has legal effect in New Zealand. Taxation on Non-Residents Non-residents are taxed in New Zealand only on income that is factually sourced in New Zealand, as outlined in the Income Tax Act 2007 (s YD 4). Over- seas jurisdictions will usually allow a foreign tax credit for New Zealand tax paid, limited to the amount of tax payable in that jurisdiction on the New Zealand To prevent people who are tax resident in more than one country from being taxed twice on the same income, New Zealand has entered into double tax agreements with many other countries. These agree- ments set out which country has the right to tax par- ticular types of income. sourced income. Double Taxation
141 CHAMBERS.COM
Powered by FlippingBook