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Trusts are settled for many reasons. While there is no one primary reason for settling a trust, creditor protection is perhaps the most commonly cited reason; perhaps because the settlor is carrying on a risky venture; perhaps because the settlor wishes to ward off the nebulous risks beneficiaries may incur. Which is all fine. But … Continue reading
Some cases seem to have eternal existence. The original matter of Spence v Lynch is one of these. The are now at least 9 recorded decisions by my count named either White v Spence or Spence v Lynch. The first case was written up in this blog as Dominant trustee architect of loss. The name was apt then, … Continue reading
In New Zealand the Law Commission has recommended that there not be a register of trusts in New Zealand. See Review of the Law of Trusts: A Trusts Act for New Zealand at 18.28. The Law Commission view that this is too blunt an instrument to use to improve accountability to beneficiaries. While the privacy … Continue reading
I write a lot about trustee liability. The reason for that is simple – there is lots to write about. Being a trustee is a risky business, and sadly many trustees are not sufficiently aware of the risks of trusteeship. For trustees or advisers who want to be better informed I have written a book … Continue reading
The recent Australian case Anderson v FC of T highlights the risks of trusteeship and reinforces the fact that liability already incurred as a trustee cannot be voided through the trustee’s retirement. Although the facts of the case relate in part to specific provisions of the Australian GST Act, the message to be taken from the case reinforces the importance … Continue reading
SWL Trustee Company Limited (SWL) is a trustee that acts together with two other trustees as trustees of a family trust. As is commonly the case, two of the trustees (the instructing trustees) are also settlors of the trust. The trust owns a number of properties. All is fine, until it is not. The trust owns a number of properties. … Continue reading
While recent headlines might lead one to belive that trusts are falling down in the face of relationship failures, closer inspection would suggest that in fact this is not commonly the case. There appears to be a significant distinction between trusts where both spouses or partners are settlor/trustees and cases where only one spouse or partner … Continue reading
Dealing with trust owned assets following the demise of the settlors’ relationship can be tricky. Many of the traps and pitfalls that can befall trustees who have diffficulties differentiating between the rights as beneficiaries and the obligations they owe as trustees are highlighted in the cases that comprise the back story to Irvine and Taylor … Continue reading
When assets are transferred to a trust by a settlor the transfer is generally by way of gift or sale. Where assets are sold there is a gift back that can be forgiven immediately, progressively or at some future date, if at all. Prior to the abolition of gift duty gifting programs were common and … Continue reading
References to executors and trustees are routinely combined and treated as synonymous with each other. But are they? Actually they are not. While the distinction is often unimportant, in certain circumstances it is critical. The executor’s duties include obtaining a grant of probate, getting in all of the assets, paying outstanding (and future) debts including … Continue reading
Matters of Trust 