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Unanimity deadlock

The default decisioin making position with a trust is that trustee decisions must be unanimous unless there is a provision in the deed of trust that specifically permits majority decisions.  Where discretionary trusts permit majority decision making, trustees can find themselves liable for decisions that they were not party to.  However, where unanimity is required … Continue reading

I’m a trustee if I say so … or am I?

Or am I?  The unsuccessful summary judgment application in Herron v Wallace highlights the importance of being able to evidence appointment as trustee.  In this case the plaintiff was seeking to recover over $2.5m under a deed of settlement and a deed of acknowledgment of debt.  Due to the plaintiff’s intervening bankruptcy it was essential … Continue reading

Wills – too much court intervention required

An extraordinary number of wills seem to be being put to the court for correction of late.  In the recent case of Re Estate Valerie Cliff Bryce  a will containing a series of clerical and arithmetic errors was corrected by order of the court.  However, the case serves to highlight concern over the number of … Continue reading

Trustees until divorce do us part

I’ve taken some liberties with the heading, the couple in question may not yet be divorced.  They are separated.  In a sequel to a previous blog regarding litigation to determine whether a $1.22 m loan was in fact a gift the High Court has determined that the sum in question was in fact a loan. Background … Continue reading

The impact of mental illness on testamentary capacity

Making a will is an important rite of passage into adulthood.  Over time, a person’s will may be up-dated to reflect changing cirucmstances or allegiances.  Some people write their own wills, more commonly a lawyer is engaged to draft the will.  The difficulty with a will of course is that by its very nature it is only operative when the … Continue reading

Dealing with delinquent trustees

Deeds of trust contain the rules by which trustees are to operate.  However, what are trustees to do if one or more trustees acts in defiance of these rules?  While hind sight is 20/20 the starting point has to be to not actually let a trust get into a position where one trustee can call … Continue reading

Dominant trustee architect of loss

Other blogs have noted what poor bedfellows trusts and relationships make.  This observation is supported by the recent decision in Spence v Lynch .  Paragraph 3 of Priestley J’s decision in  this case neatly setting the scene for the ultimate show down that could be paraphrased “bad things happen to bad trustees.” “[3] The relationship of the man and … Continue reading