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Deed of Trust

This category contains 21 posts

Buyer’s remorse

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

Strangers and Beddoe orders

A Beddoe order (the name derives from the case Re Beddoe (Downes v Cottam))  is an order made by the court that permits trustees to incur expense on behalf of the trust filing or defending proceedings. A Beddoe order (if obtained) protects the trustees against claims by the beneficiaries that the action should not have been brought … Continue reading

The curious story of the Angora cat

Para 438 in the decision of MezhProm Bank v Pugachev refers to a phenomenon in patent law known as the Angora cat problem first identified by Professor Franzosi, an eminent academic expert in the field: “Professor Mario Franzosi likens a patentee to an Angora cat. When validity is challenged, the patentee says his patent is … Continue reading

How afraid should we be of Clayton?

The Supreme Court decision in Clayton v Clayton changed the trust landscape.  But how afraid should we be?  Are all trusts vulnerable to Clayton-style challenge?  Or just the ones that push the envelope?  And, if the latter, how far can one push before there is a problem? A recent decision of Moore J has provided … Continue reading

The devil and detail and deeds

Accordingly to Wikipedia the idiom, “The devil is in the detail” refers to a catch or mysterious element hidden in the details, meaning that something might seem simple at a first look but will take more time and effort to complete than expected and derives from the earlier phrase, “God is in the detail” expressing … Continue reading

Ouch

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

Whose house is it?

The transfer of a family home to a trust is a relatively routine occurrence.  The general order of events is: settle trust execute agreement for sale and purchase carry out any  gifting get bank consent register transfer What happens if the last step does not occur? Has the sale in fact been effected?  Particularly in … Continue reading

Taxation of Trusts ed 3

  The taxation of trusts is a dynamic and ever-changing landscape. The third edition of Taxation of Trusts published this week (September 2016) has been up-dated to incorporate recent case law developments and legislative amendments.  The text also considers the application of FATCA to trusts and proposed new reforms to the disclosure rules and closely … 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

Positive exercise of discretion requried

In Shakespeare’s Henry IV, Part I when Prince Hal finds the cowardly Falstaff pretending to be dead on the battlefield, the prince assumes he has been killed. After the prince leaves the stage, Falstaff rationalizes “The better part of Valour, is Discretion; in the which better part, I haue saued my life” (spelling and punctuation … Continue reading

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