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… 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 … Continue reading
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
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
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
It can be a tricky thing being a beneficiary. All those rights – but how to enforce them? The court has an inherent right to enforce trusts – can that can entitle beneficiaries to trust documents so that the beneficiaries can ensure the trust is (or is not) being properly managed. However, there are limits … Continue reading
In 2004 Mr Wheeler sold over $2.4m of assets owed by him to a trust he settled. The trustees were Mr Wheeler and his accountant Mr Lindsay. The purchase price for the assets sold to trust was left as a debt owing to Mr Wheeler. Between 2004 and 2010 five gifts of $27,000 were made … Continue reading
Sometimes I can’t say it any better than another trust professional.The following from Lindsay Pope highlights the too-often overlooked issues that can arise as professional advisors and professional trustees lose sight of the important demarcations between their roles: Professional trustee vs professional advisor roles Professional advisers provide advice to clients. In an advice relationship, decisions are … Continue reading
It’s a tricky road being a beneficiary. All these rights – but how to enforce them? What if you are a beneficiary, or you might be – and you want to see the documents that as a beneficiary, you have a right to? How can you compel the trustees to confirm whether you are a beneficiary? The … Continue reading
The terms minute and resolution are often used interchangeably and it is common for a trustee resolution to be only treated as final once signed – but is this correct? What is a resolution? A record of a decision or is the resolution the decision? I have previously considered whether a resolution requires that there be … Continue reading
I often describe trusts to new clients by reference to puppies. A lovely idea – and a very important life time companion. However, trusts like puppies need a lot of support, maintenance and there needs to be someone to clean up. I was pleased then to see Lindsay Pope today analogising accepting an appointment as a trustee … Continue reading
Matters of Trust 