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Trusts are commonly anthropomorphised – my trust, the trust, his trust. At the very least the trust becomes a possessive noun rather than the inchoate mix of rights and obligations that a trust really represents. It is difficult of course, to separate out the parties. Because most of the time – who cares? Does it … Continue reading
The following article by Michael Parker, Andrew O’Bryan, Frank Hinoporos, Emma Woolley and William Moore from Hall & Wilcox highlights the importance of knowing who the trustees and beneficiaries of Australian trusts are. While the duty applies in an Australian context it can have relevance to New Zealanders who may be looking at purchasing real estate … Continue reading
Guarantees are a common part of commerce. In a practical sense they are often unavoidable. Shareholders guarantee loans to companies; settlors guarantee loans to trusts – there is a certain symmetry because the shareholder or settlor is able to ultimately benefit from the advance. But what about when the trustees who are asked for a guarantee cannot … Continue reading
The role of executor of an estate and the on-going responsibilities and obligations are not always well understood. Where there is a legal advisor the executor may be well schooled in the relevant obligations and the administration of the estate can be expected to proceed in a timely and proper manner. However, sometimes this is not … Continue reading
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
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
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
… 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
