In Godfrey v McCormick Nation J held that an attorney under an enduring power of attorney can not exercise powers of appointment even if held in a personal capacity. This is inconvenient where there is incapacity. While this will likely be addressed by the trustee appointment and removal provisions in the Trusts Act 2019 (following … Continue reading
Triezenberg v Mason (As to power and appointment and costs) follows the earlier trustee removal decision. See Buyer’s remorse. By way of background the High Court removed Mr Mason and his incapacitated wife as trustees of two family trusts. A rift had occurred between the competent trustees that had resulted in significant dysfunction. No orders … 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
It can be necessary to change trustees for many reasons. Regardless of the circumstances that require a change of trustee, the decision as to appropriate trustees can be complicated and requires a careful balancing of a range of considerations. The interim judgment in Thomson v Riley provides a useful insight into how a court balances … Continue reading
Bean v Bean is a an application to strike out a Family Protection Act 1955 (FPA) claim on the basis that it has no prospect of success. The bar is set high for such a claim. While any such claim will depend on its own facts, Bean v Bean is an interesting study of the procedural and tactical aspects … Continue reading
Trainer v Leake involves a contest between “rival contenders as trustees of a religious trust.” Background The Hawkes Bay Revival Centre is a church founded in 1986. It is run under the auspices of the Hawkes Bay Revival Centre Trust, a trust established by Trust Deed to hold real and persona; property “for the benefit … Continue reading
Trusts are commonly used for secession planning providing, at least conceptually, for long-term asset ownership that will not be disrupted by death. That’s the theory anyway. However, the passage of time and the appointment and removal of trustees can mean that once harmonious relationships and arrangements are no longer so. The decision in Guest v … Continue reading
Some disputes have the plots of a war movie. Everything starts fine until the hostilities begin and everything gets messy. Sometimes this just leads to someone carrying out an attack that doesn’t make sense… The defendants in the case of Triezenberg and Dodd v Mason, Alexander and Wendy Mason, were married in 1959 and had three … 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
When a trustee retires, it is necessary to transfer the trust’s assets from the trustees (including the retiring trustee) to the continuing and any new trustee. Where a trustee is removed in contentious circumstances the trustee may be unwilling to assist in the transfer of trust property. Sometimes with good reason – for example where … Continue reading
