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The jurisdictional boundaries of the Family and High Courts are not always entirely clear in trust matters. While the Family Court has exclusive jurisdiction in relationship property matters, the Property (Relationships) Act 1976 provides that proceedings can be transferred to the High Court in certain circumstances. Further, even if the Family Court is accepted as the appropriate jurisdiction, it may be that … Continue reading
The decisions in Eden Refuge Trust make sobering reading for any person acting under a trustee’s instructions. The proceedings (see Eden Trust v Hohepa) relate to claims against a trustee for breach of trust and conversion, and claims against the solicitor acting for the trust for breach of fiduciary duty, knowing receipt and dishonest assistance. By way of … Continue reading
The Proceeds of Crime Act 1991 (since replaced by the Criminal Proceeds (Recovery) Act 2009) provides for the forfeiture of property used in the commission of a crime. In the case of Solicitor-General v Monk the property in question was a family home that had been used in the manufacture of methamphetamine. The fact that the home was owned … Continue reading
The importance of genuine trust management cannot be overstated. Although a common response to what are ofter seen as “rubber stamp” independent trustees, is to dispense with independent trustees altogether, this approach is dangerous and can make it difficult to evidence an effective trust. The fact is, trust ownership can be a bit of a … Continue reading
It is common practice for professional trustees to act as the director of a trustee company rather than personally. The use of a corporate trustee can limit the liability that the professional adviser might otherwise incurred had the adviser acted personally (see McNulty v McNulty where the beneficiaries claim against the director of a corporate trustee was … Continue reading
It is common for a modern deed of trust to provide for an appointor who has the power to add and remove trustees. Where the deed is silent regarding the appointment of trustees, recourse can be had to s. 51 of the Trustee Act, which empowers the court to appoint new trustees. Although, there is … Continue reading
I’m presenting a webinar for NZICA on the Taxation of Trusts on 23 March 2012. The webinar will provide an overview of the many and varied ways in which trusts are taxed and will also include the opportunity to ask questions. If you are interested in attending the webinar contact NZICA directly.
When Alexander Pope wrote “To err is human; to forgive, divine” it is doubtful that his mind was turned to matters equitable. However, the expression is an apt description of the recent decision in Official Assignee v Mayers. This case considers whether the Official Assignee can recover gifts made by way of forgiveness of debt prior to … Continue reading
The Charities Commission was established pursuant to the Charities Act 2005. Since establishment the Charities Commission has been responsible for the registration of charities together with a responsibility to promote public confidence in the charitable sector. To date the Commission’s views have been upheld in 10 of the 11 challenges against the Commission’s registration decisions to the High Court. Any … Continue reading
A bare trust arises where property is held by a trustee who can only act on the direction of the trust’s beneficiary. Bare trusts can arise inadvertently or by design. The recent decision in Mudgway v Tetra House Trustee Limited, which considers the sustainability of a caveat involves some consideration of whether the trust in question was a bare trust. See paragraphs … Continue reading
Matters of Trust 