This category contains 10 posts

Disclosure to the trustees

Disclosure of trust information to beneficiaries is commonly considered.  However, what of disclosure to the trustees? Consider the case of Daniel v Cundall.  In this case Mr Daniel and Mr Cundall were the trustees of a trust.  Mr Daniel, a lawyer, says that he left the day-to-day trust administration to Mr Cundall. After a long period of … Continue reading

Undocumented loans 

The informality associated with loans between family members can lead to later disputes when different interpretations of the transaction emerge. Warin v Warin is a case in point. In that case $367,903.90 was advanced to the Warins’ daughter. The loan comprised: $100,000 that was initially secured by mortgage in 1997 $141,749.70 that was loaned to … Continue reading


In Davis v White (see You aren’t my beneficiary – are you??) a trust was found to have failed by reason of uncertainty. The second hearing of the matter related to costs and is a sobering tale for trustees. Mrs White who incurred significant costs (AUD 40,893 and $85,369.50 in New Zealand, plus disbursements) said that the proceedings could … Continue reading

Family at war – but which war?

On 17 July 2016 the Sunday Star Times reported about a family at war over a mansion with an opening quote that read “Lawyers say the judiciary are increasingly overturning wills in family disputes.” The dispute ended up in the High Court, firstly regarding an application for the removal of the trustees and secondly a … Continue reading

Do it right or don’t bother?

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

What’s a trustee to do?

Family trusts are tricky things. The more so when there are loose ideas about maintaining and benefitting beneficiaries; but no real means to do so.  Commonly such trusts own a single asset and require regular financial or other assistance from the settlor or involved trustees. Such was the position of the trust settled by one Mrs … Continue reading

Danger Will Robinson

Corporate trustees are a common feature of modern trusts.  Professionals increasingly act through corporate trustees to address concerns over liability.  While some concern has been raised about the wisdom of utlising uncapitalised corporate trustees – the practice is widely acknowledged and accepted. Where views diverge is on when or whether corporate trustees should accept multiple appointments.  Unless … Continue reading

High cost of failed argument

The common intention constructive trust is a rare beast.  When trying to make such an argument it is essential to have the facts right as demonstrated in the decision in Ridge v Parore (Common Intention Constructive Trust, or not).  The cost of getting the argument wrong in an argument that the court described as “doomed … Continue reading

Trusts protect beneficiaries not trustees

It is conceded that liberties have been taken with the heading due to space limitations.  The point, that cannot be emphasised too much, is that at the most basic level trusts exist to hold, manage and protect, property, for the benefit of the beneficiairies.  Not the trustees.  A trustee’s liability between the trustee and the … Continue reading

Who meets the cost of a will challenge?

In the civil jurisdiction, costs generally follow the event.  That is, the loser pays the winner’s costs.  However, there are exceptions to this.  In the context of probate applications, the general rules of costs will not necessarily apply where: the litigation arises due to the will-maker’s fault due to the state of the will-maker’s final … Continue reading