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What a difference a day makes

 

How free are we to dispose of assets during our life?  Commons v Commons, which has to date has focused on discovery issues, has at it’s heart the vexed question as to whether inter vivos gifts to family trusts should be equated with testamentary dispositions.  

Flowing from this Commons raises important issues regarding the proportionality of beneficiaries’ rights to disclosure and how these must be balanced against competing considerations such as the private rights of the recipients of trust distributions .  As noted by Sargisson AJ at [41]:

” … The right to disclosure via discovery is not to be used as a de facto means of obtaining broad and highly intrusive disclosure of documents of marginal relevance to allegations to the central complaint of mismanagement in making distributions of estate income and capital.”

Commons  highlights the complex interplay between discovery and disclosure and the difficulties that confront those who seek to review the exercise of trustee  discretion.

References:

  • Commons v Commons [2019] NZHC 1850

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