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An update from Canterbury Legal

Legalchat - March 2024

Dear *|FNAME|*

Easter is upon us and we note that several months have passed since our last Legalchat newsletter. We hope since our last update that you have managed to make the most of those warmer months as winter starts to draw nearer!

This month we say farewell to our Legal Administrator Amy. Many of you who have engaged with our services over the past few years may have met Amy either over the phone, or in person at our reception area. We wish Amy all the best for her onward plans. We look forward to welcoming our new staff member Chelsea in April, who will be taking over the role previously held by Amy.

This edition we will be looking at prenuptial agreements, the rise of deepfake technology, a recent climate case ruling and the problem with ‘moral duty’ when reinterpreting the Family Protection Act.

Deepfakes - A legislative gap in New Zealand

What is a deepfake?

A deepfake is essentially where another person’s characteristics have been digitally altered to represent that of someone else. Their use is often tied with deceptive practices or malicious acts and for spreading false information through the use of someone else’s identity.

No longer just the domain of expert digital creators. Deepfake technology is rapidly becoming far more commonplace, with the assistance of AI considerably more people are able to access the technology than ever before. It involves everything from imagery, videos and audio all having the ability to be manipulated in an extremely convincing way.

While this technology presents a great level of concern for most New Zealanders, it appears New Zealand’s legislation is falling woefully behind as this cutting edge technology continues to advance at pace. This often leaves victims with little recourse other than asking online platforms for removal, should they be on the receiving end.

Despite submissions requesting for immediate inclusion, it appears recent amendments have fallen short of addressing the issue at large in New Zealand. Countries such as Australia and the UK have enacted legislation specifically addressing deepfakes, and the US has introduced bills for addressing AI generated content. However, it appears that legal measures alone may not go far enough, with experts calling for a combination of public education, social media takedowns and technological authentication methods.

It will be interesting to keep track of how this new area of legislation may eventually develop.

Recent climate case ruling

In an interesting new development, iwi leader Mike Smith has successfully won the right to sue seven large well known New Zealand companies for their role in contributing to climate change. After the case was initially being thrown out by the Court of Appeal, Smith’s case has now been reinstated by the Supreme Court.

The case brings together a group of some of the largest emitters including Fonterra, Z Energy and Genesis Energy. The combined group represents a third of New Zealand’s largest emissions. A key part of the case is the role of tikanga Māori, along with the direct relationship to coastal land and waters that are being flooded and damaged as a result of climate change.

In response to this, lawyers for the emitters argue that climate change affects everyone and that it should be best managed by parliament & legislation for all. The Supreme Court’s recent ruling notes that ‘the window for securing a liveable and sustainable future for all people was closing’.

Interestingly, the case is one of several internationally using the courts to speed up action on the crisis. It will be interesting to see if the outcome of this case may set a further precedent.

The Essential Prenuptial Guide

Relationship property, prenuptial agreement, a prenup. Have you got one, or been considering one?

We understand it can be a difficult subject to approach when it relates to someone close that you care about. But in our experience we know it is certainly important and best viewed with a proactive approach of ‘what if’, as opposed to ‘what now’, should the worst case scenario transpire.

A prenup sets out the terms and conditions of how property / assets are managed should there be a deterioration of that relationship. The reality is that you do not need to be married or in a civil union for you or your partner’s property to be called into question. From a legal perspective, the timeframe that a partner or spouse can claim half of the assets is three years' of living in the same residence in a 'de facto' or married relationship.

Essentially if you do not have an agreement in place, those assets are able to be split equally including KiwiSaver, potential for an inheritance, if you are a beneficiary of a trust, just to name a few examples.

It may be something you have considered previously, been putting off or needing updating to account for changes. We have compiled a list of useful considerations for those curious to know if having a prenup is the right option for your circumstances.

Reinterpreting the Family Protection Act 1955: the problem with ‘moral duty’

In current New Zealand law, "moral duty" refers to the ethical obligation that a will-maker (the person creating a will) has towards their spouse or children. This obligation involves providing for the financial needs of family members in a manner that reflects societal expectations of fairness and familial responsibility. However, the exact definition and scope of "moral duty" are not clearly defined in statutes, leading to ambiguity and interpretation challenges in legal proceedings.

The Family Protection Act 1955 currently requires claimants to prove a will-maker breached a "moral duty" towards family members. In this respect a fundamental test is that “a just, but not unloving, husband or father owes towards his wife or towards his children”. However, the concept of "moral duties" still lacks clarity in law.

The Law Commission proposed limiting court powers under the Act based on public opinion gathered through surveys. These recommendations await parliamentary review, with a high likelihood of adoption (normally an 80% take up rate on average). The commission’s findings show that there is little appetite for the present legislation to stay as it is and that an update is advisable.

It is noted that courts should consider the Commission's findings rather than waiting for legislative changes from parliament.

Thanks  *|FNAME|*

We hope you have enjoyed this most recent edition of Legalchat, bringing you insightful information on a range of New Zealand legal matters. As always, we're only a phone call or email away if you need our support.

Regards

Clive, Grant and the Team at Canterbury Legal