Estate planning in a changing world

Estate planning might begin with a will, but it rarely ends there. It requires an understanding of the people, relationships, assets, and competing interests behind the documents.

This was a consistent theme throughout the Estate Planning Conference 2026 - Conflict and Independence, hosted by The Law Association of New Zealand in Auckland on 30 July. Across the sessions, speakers highlighted the need to identify potential conflicts, analyse competing interests, apply practical strategies to prevent disputes, and maintain professional independence.

Looking at the complete picture

One of the most important questions in estate planning is also one of the simplest: who is the client?

The opening panel session explored how lawyers may be advising couples, executors, beneficiaries, or attorneys whose interests initially appear aligned. Those interests can change following separation, incapacity, or death. A conflict may not exist when documents are prepared but can emerge years later when they need to be relied upon.

This means understanding the client’s complete family structure, financial position, and relationship dynamics. It also means remaining clear about who the lawyer acts for and in what capacity. Conflict checks should not be treated as a one-off exercise, particularly when relationships, instructions, or legal roles change during a matter.

The Planning for Conflict session highlighted that modern estates often involve blended families, trusts, company interests, and jointly owned assets. Identifying these complexities early allows lawyers to anticipate potential claims, select suitable executors, and recognise when independent legal advice may be required.

Documents and roles cannot be viewed in isolation

The S21 Agreements: The Potential to Derail Asset Planning session highlighted how section 21 agreements, although often associated with separation, can have significant consequences following death. If an agreement is overlooked when a will is prepared, the documents may create inconsistent or unintended outcomes.

A section 21 agreement and will should be treated as one estate planning package. Each document should clearly address what happens on death, what the surviving partner is intended to receive, and whether a gift under the will is additional to or replaces an entitlement under the agreement.

The same connected approach applies to the people appointed under an estate plan. It is common for an executor to also be a beneficiary, but these are two distinct roles.

As a beneficiary, the person has a personal interest in the outcome. As an executor, they must act impartially and consider the interests of all beneficiaries and potential claimants. When making decisions, they need to be clear about which “hat” they are wearing.

Independent legal advice may be required for the person in their capacity as a beneficiary.

Lawyers should also consider whether appointing a co-executor or independent executor would help manage potential conflicts. However, a co-executor will not always resolve the problem and may create practical difficulties or deadlock.

Managing conflict requires the right response

Preventing estate disputes starts with clear instructions, consistent drafting, suitable appointments, and a proper understanding of the client’s assets and family circumstances.

Where appropriate, discussing an estate plan with family members may also help manage expectations and reduce the surprise or suspicion that can arise after death.

The Advising on Claims by Estates session considered circumstances in which a personal representative may be asked to pursue a relationship property claim on behalf of an estate.

Under section 88 of the Property (Relationships) Act 1976, the personal representative requires the court’s permission and must satisfy the serious injustice test.

The decision should be based on reliable evidence, the complete asset position, and the interests of the estate. Pressure from beneficiaries is not enough. Where the surviving partner’s personal interests conflict with their executor duties, independent administration may become necessary.

The Caveats Against Probate session highlighted the importance of choosing the correct legal response when a dispute arises. A caveat against probate is a protective tool with a specific purpose. It may be appropriate where there is a genuine concern about the validity of a will or who is entitled to administer the estate. It is not a general way to delay administration or challenge the fairness of a will.

A caveat is also not the correct procedure for claims under the Family Protection Act 1955, the Law Reform (Testamentary Promises) Act 1949, or the Property (Relationships) Act 1976.

Once a caveat is lodged, the grounds should be investigated promptly. Misuse can increase costs, escalate conflict, delay administration, and expose the person who lodged it to an adverse costs award.

Technology does not replace professional judgment

The EPOAs: Conflicts and Independence When Advising session highlighted that enduring powers of attorney can create conflict at every stage, from drafting and certification through to activation and ongoing decision-making.

The donor remains the client, and lawyers must consider capacity, voluntariness, attorney selection, witness independence, and the possibility of an attorney acting in their own interests. Execution is not simply a formality. Strong conflict checks, detailed file notes, and careful compliance with signing and certification requirements remain essential.

A point raised during the closing panel session was that technology has advanced rapidly, while EPOA signing and certification requirements have not always kept pace. Digital workflows can make the process easier to manage, but they cannot remove requirements relating to prescribed forms, signatures, independent witnessing, and certification.

Another observation from the closing panel compared AI with a junior lawyer early in their career. Both can produce valuable work, but the output still requires review and checking.

AI can improve efficiency and support legal work, but it does not remove the need for verification, accountability, and professional judgment. It is most valuable when used within processes that include appropriate safeguards and human oversight.

Greater certainty through better planning

The conference reinforced that identifying a conflict is only the beginning. Lawyers must also understand how competing interests affect their advice, choose the appropriate response, and maintain their independence as circumstances change.

Good estate planning anticipates how people, documents, and interests may interact in the future. Addressing those issues early can provide greater certainty for clients and reduce the risk of costly disputes later.