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In Jongeneel v Schaake Powell J traverses the parameters of deadlock that would support the Court exercising powers to remove existing trustees and appoint a replacement trustee pursuant to sections 112 and 114 of the Trusts Act 2019, By way of background Ms Jongeneel and Mr Schaake settled the J A G and A J … Continue reading
Cooper v Pinney is a second appeal and cross-appeal, by leave, from a decision of the Family Court that ascertained relationship and separate property following a relationship break down. At the heart of the matter was the treatment of a discretionary trust settled during the relationship to receive property by way of resettlement from a … Continue reading
“It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, …” Thus commenced Charles Dickens’ novel A Tale of Two Cities, and similarly the mindset of any settlor of … Continue reading
Trusts can seem like a great idea. And then one day a settlor can be confronted with the reality of the loss of control and cast around for someone to blame. In addressing the realities of trust ownership, the exercise of powers of removal and appointment can offer a solution to issues with the dynamics between … Continue reading
H.W. Fowler’s opinion was that in using presume, the speaker believes the supposition is true and will believe it until he learns otherwise. In using assume, the speaker feels no certainty that his supposition is true or not. In a legal context, presume means “to take as proved until contrary evidence is presented.” Ex. The … Continue reading
The use of corporate trustees is a common response to trustee liability. However, where one of two natural person trustees retires and a corporate trustee is appointed, it is important to consider whether the retiring trustee has been discharged. See ss 43, 45 and 46 of the Trustee Act 1956, which provide: Relevant Legislation 43 Power … Continue reading
As noted in the judgment McLaren v McLaren at [1] this case relates to “… a sorry tale of what can occur when a family adopts an inappropriate form of trust deed without adequate advice or sufficient understanding of the legal effect of its terms. In this case, a son who was given a power … Continue reading
The decision in Judd v Hawkes Bay Trustee Company Limited represents another tributary in the trickle of constructive trust cases. The facts are relatively straight-forward – trust settled after the end of the settlor’s marriage owns the family home, third wife (Ms Judd) aware of this, Ms Judd makes some direct and indirect contributions (40% was claimed, ultimate result equates … Continue reading
Trusts are a bit like plants – tend them and nourish them and you can reap the rewards for years. Leave them alone and even if once well tended to, the plant can bolt or fail. The story that became Murrell v Hamilton provides a sad example of what can happen when trustees fail to collectively … Continue reading
If it were a movie the title might be: “Rosebud 2 – the edifice collapses further. The case of Rosebud Corporate Trustee Limited v Bublitz focused on whether the trust for which Rosebud Corporate Trustee Limited (Rosebud) acted was a sham. As a result of the court finding the trust to be a sham an agreement that Rosebud Trust purported to … Continue reading
Matters of Trust 