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In Davis v White (see You aren’t my beneficiary – are you??) a trust was found to have failed by reason of uncertainty. The second hearing of the matter related to costs and is a sobering tale for trustees. Mrs White who incurred significant costs (AUD 40,893 and $85,369.50 in New Zealand, plus disbursements) said that the proceedings could … Continue reading
The issue of incapacitated trustees is not a new one. Trustees continue to age and many do not retire when they can still elect to do so. This leaves the issue of removing incapacitated trustees and transferring property held by them to continuing and new trustees. While it is generally accepted that an attorney under an … Continue reading
What information can a discretionary beneficiary of a trust request from the trustees? If the beneficiary has been bankrupted, does that mean they no longer have personal rights to request information? The Supreme Court has now expressed its view on these issues and has upheld the earlier Court of Appeal decision. However, the Supreme Court’s judgment … Continue reading
As noted in the judgment McLaren v McLaren at [1] this case relates to “… a sorry tale of what can occur when a family adopts an inappropriate form of trust deed without adequate advice or sufficient understanding of the legal effect of its terms. In this case, a son who was given a power … Continue reading
This blog might just as easily be entitled “No-one ever said if only we hadn’t documented that loan agreement”. Zhang and Li v Li relates to an advance of $335,500 from Ms Li’s parents to Ms Li and her husband. After Ms Li and her husband separated her position was that the advance was a … Continue reading
Corporate trustees are a common feature of modern trading trusts. The basic rationale is that the use of a company means that any liability that would otherwise accrue – say to a natural person trustee – accrues instead to the company and provided the directors do not breach the duties owed under the Companies Act … Continue reading
It is generally accepted that while beneficiaries are the recipients of trust assets at the trustees’ discretion, beneficiaries have relatively little in the way of enforceable rights. Beneficiaries can request trust information and can ask, but not compel, the trustees to distribute trust assets to them. It is not always appreciated that beneficiaries’ access to the … Continue reading
Following the Supreme Court decision in Clayton v Clayton (Claymark Trust) fresh light has been shed upon the scope of s 182 of the Family Proceedings Act 1980 in the case of Da Silva v Da Silva. By way of background s 182 gives the Court the discretion following divorce (the section does not apply to de facto relationships) … Continue reading
When settling a trust it can be useful to consider what happens next. In this regard the settlement of a trust can be likened to that moment in the pet shop where this adorable puppy all paws and nose and licky tongue and waggy tail and soulful eyes uses its artillery of cuteness to attack … Continue reading
It can be hard enough to deal with being de-friended on Face Book. But what about when your mother favours the sibling who lived with her for her whole life over you? Rule and Belcher v Rule and Charles Whata J grappled with this reality when an elderly mother entered into a new will days after suffering … Continue reading
Matters of Trust 