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Get the court right

Claims against trusts are on the increase the reasons for which are various and relate, in part to the number of trusts in existence in New Zealand and in part to a growing appreciation and awareness as to what options a disgruntled beneficiary, settlor, trustee or creditor might have. One area that has produced much … Continue reading

An inconvenient truth

It is commonly said that there is no symmetry between trust law and tax law.  There is a similar disconnect in respect of the appointment and removal of trustees, powers of attorney contained in a deed of trust, regular and enduring powers of attorney.  This topic has been recently explored in the context of dementia and aging … Continue reading

Do trusts still work?

I was asked this week, in a round about way, whether trusts “still work”?  The question was actually couched as to whether I was aware of any statistics about how many trusts are wound up.  I am not aware of any statistics along those lines.  However, from my own experience I still settle more trusts … Continue reading

Corporate trustees are not always the answer

Corporate trustees are an increasingly common feature of modern discretionary trusts.  As the increasing risks of trustee liability become more apparent, it can only be presumed that the use of corporate trustees will continue to increase. However, corporate trustees are not an absolute panacea and it is important to appreciate that the structure of any … Continue reading

Future proofing wills

Writing a will is in large part a leap of faith.  The will-maker’s wishes may be clear and objectively reasonable, for example providing for a spouse or partner on the expectation that children will be provided for when the surviving spouse or partner dies.  However, if on or more of the children are unhappy with the … Continue reading

700,000 reasons not to be a trustee

Trustees act personally.  Where a trustee enters into a transaction the trustee is personally liable unless that liability can be limited.  Sometimes this is possible by way of a contract term, in some instances standard from agreements can include a limitation of liability. However, in other instances, for example where liability is imposed by statute for … Continue reading

Trusts and relationship property

No man is an island.  Nor is any trust.  An important, and often overlooked facet of asset and estate planning is the imposition of other legislative regimes.  The cases that comprise the Herbst v Herbst litigation are a good illustration of the result of failing to consider this adequately. The facts of the cases are … Continue reading

Beneficiaries fighting back

Beneficiaries are often in a somewhat invidious position.  Despite the accepted rights of beneficiaries, access to remedies comes at a price.  The case of Woodward v Smith is a rare example of a beneficiary seeking a prospective costs order (also known as a pre-emptive or protective costs order).  A prospective costs order is an order that … Continue reading

What do trustees need to know about FATCA?

First off, what is FATCA?  FATCA is an acronym that stands for Foreign Account Tax Compliance Act.  This is an American initiative, with global reach, that places on-going obligations on non-US financial institutions to verify and review accounts to establish whether the account is held or ultimately controlled by a US person. Unless the U.S. … Continue reading

Disappointed beneficiaries

Blended families pose numerous challenges.   On the death of a parent balancing the needs of that parent’s children and a surviving step-parent can be challenging.  Add a trust and some last-minute asset and estate planning into the mix and the potential for conflict increases. Consider the position of the children who believe themselves to be … Continue reading