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Corporate trustees are an increasingly common feature of modern discretionary trusts. As the increasing risks of trustee liability become more apparent, it can only be presumed that the use of corporate trustees will continue to increase. However, corporate trustees are not an absolute panacea and it is important to appreciate that the structure of any … Continue reading
Writing a will is in large part a leap of faith. The will-maker’s wishes may be clear and objectively reasonable, for example providing for a spouse or partner on the expectation that children will be provided for when the surviving spouse or partner dies. However, if on or more of the children are unhappy with the … Continue reading
Trustees act personally. Where a trustee enters into a transaction the trustee is personally liable unless that liability can be limited. Sometimes this is possible by way of a contract term, in some instances standard from agreements can include a limitation of liability. However, in other instances, for example where liability is imposed by statute for … Continue reading
No man is an island. Nor is any trust. An important, and often overlooked facet of asset and estate planning is the imposition of other legislative regimes. The cases that comprise the Herbst v Herbst litigation are a good illustration of the result of failing to consider this adequately. The facts of the cases are … Continue reading
The general rule is that costs follow the event, with the loser paying the winner’s costs, in whole or in part. However, the rules are less clear cut with trust-related litigation and costs remain at the court’s discretion. Accordingly, beneficiaries are often in a somewhat invidious position. Despite the accepted rights of beneficiaries, access to … Continue reading
First off, what is FATCA? FATCA is an acronym that stands for Foreign Account Tax Compliance Act. This is an American initiative, with global reach, that places on-going obligations on non-US financial institutions to verify and review accounts to establish whether the account is held or ultimately controlled by a US person. Unless the U.S. … Continue reading
Blended families pose numerous challenges. On the death of a parent balancing the needs of that parent’s children and a surviving step-parent can be challenging. Add a trust and some last-minute asset and estate planning into the mix and the potential for conflict increases. Consider the position of the children who believe themselves to be … Continue reading
Death and taxes are often cited as the only certainties. While these can be prepared for, sometimes, things change. Even where a sensibly drafted will is in place, circumstances that might not have been foreseen can arise. Sometimes at a time where the will-maker can no longer intervene. Where the issue relates to the appointment of … Continue reading
Allegations of sham are commonly made, but rarely made out. Accordingly the case of Rosebud Corporate Trustee Limited v Bublitz makes interesting reading. The judge does not keep us in suspense long, coming out with his finding at p. 5 that the trust is a sham. One of the major players in this story is one … Continue reading
The Financial Markets Authority (FMA) has filed civil proceedings against Prince & Partners Trustee Company Limited (“the Trustee”) using the powers of section 34 of the Financial Markets Authority Act (see below). The Trustee was the trustee for finance company Viaduct Capital Limited, which collapsed in 2009. The FMA alleges that the Trustee breached the obligations it owed to … Continue reading
Matters of Trust 