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Mixing oil and water

Trusts and marriage break ups are a tricky thing to manage – like trying to mix oil and water more often than not.  Some trustees can put personal differences aside and get on with it, most, it appears, can’t.  Often the pragmatic (and ultimately cost effective as it breaks deadlocks) solution is the removal of … Continue reading

Breaches of trust will not be rewarded – not even a little bit

The decision in Adlam v Savage, which relates to a breach do trust is a hard read.  However, it is worth persevering to appreciate the practical issues associated with the remedies available when a trustee profits from a trust or fiduciary relationship. In Adlam v Savage Ms Adlam received over $14 million from exploiting knowledge … Continue reading

Certain rights retained by bankrupt trustee

On bankruptcy the bankrupt’s assets pass to the Official Assignee (Assignee).  However, when the bankrupt is a trustee matters are less clear. The decision in Mawhinney v Environment Court highlights the complicated juxtaposition of the rights a bankrupt trustee has when the trustee wants to seek judicial review of the costs order that lead to … Continue reading

What a wicked web we weave

when first we practice to deceive. The case of Marr v Parkin demonstrates the need sometimes to differentiate between transaction risk and expectation and the rights that might flow from the latter. The facts of the case are relatively straight-forward. Ms Marr’s home was subject to a mortgagee sale. She wished to retain the home … Continue reading

The tricky road the trustee traverses

Knowing all the answers can seem an important measure of competence.  However, a greater measure is knowing when you don’t.  I remember a partner I once worked for who would say to me “Vicki, I just can’t fit all that into my little pea brain – you’re going to have to make me understand that.”  … Continue reading

The capacity to trust

Testamentary capacity is relatively well traversed and understood and the principles set out in Banks v Goodfellow (1870) LR 5 QB 549, which has endured the passage of time, remain the leading authority on testamentary capacity.   The following statement from p. 567 of that judgment succinctly observes the elements of testamentary capacity: “As to the … Continue reading

Read the writing on the wall

Relationships and trusts can be poor bedfellows.  While it can be prudent to protect trust assets from a new relationship partner; the extent of protection provided will be significantly diminished where: the new partner meets trust expense’s the settlor / trustee runs personal and trust expenses through the trust account the history of trustee resolutions … Continue reading