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This category contains 106 posts

What a difference a day makes

  How free are we to dispose of assets during our life?  Commons v Commons, which has to date has focused on discovery issues, has at it’s heart the vexed question as to whether inter vivos gifts to family trusts should be equated with testamentary dispositions.   Flowing from this Commons raises important issues regarding the proportionality of beneficiaries’ rights to … Continue reading

Can attorneys exercise powers of appointment?

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

Trusts Bill obtains Royal Assent

Further to last week’s post regarding the Trusts Bill having its third reading before the New Zealand Parliament (see A whole new world … in 18 months), the Bill received Royal Assent on 30 July 2019 and is therefore now the Trusts Act 2019. Aside from certain provisions relating to trusts affecting financial services legislation, the … Continue reading

A whole new world … in 18 months

The Trusts Act 2019, which has been 17 odd years in the making is now law.  The Trusts Bill passed its third reading and received Royal Assent on 30 July 2019, meaning most provisions of the Act come into force on 30 January 2021. The Trusts Act replaces the Trustee Act 1956 and the Perpetuities … Continue reading

Law Commission recommends new Relationship Property Act

The New Zealand Law Commission has released its Report “Review of the Property (Relationships) Act 1976. The Report recommends wide ranging changes to the thrust of property contributions and division in the context of relationships, modernising aspects where changes in society have clearly left behind attitudes framed in the existing legislation and promoting more flexible … Continue reading

No hiding from the terms of the trust

One of the most fundamental pieces of advice to all intending or new trustees should always be to know the trust instrument, typically a deed of trust. It sets out the terms of the trust including the obligations and responsibilities of trustees, as well as clarifying some of the things they can and cannot do, … Continue reading

Never look a gift horse …

The Court of Appeal decision in MSD v Broadbent takes a considered and principled approach to whether MSD can assess “notional” income on assets that have been transferred to family trusts.  For the background to this case see Notional income knocked back.  [Note that the decision relates to part 4 of the Social Security Act 1964 (the … Continue reading

So close to Jasmine you can smell it

CDT 12 Limited v Millar doesn’t answer the Jasmine question, but does raise considerable doubt as to whether Jasmine applies in New Zealand.  For the background to the “Jasmine” issue, see Two trustees go down to the woods … one is discharged, one is not and Exit stage left. Mallon J’s decision on the papers in … Continue reading

Beddoe late than never

In the Matter of the Stingray Trust relates to complex inter-jurisdictional trust proceedings hard in the Cayman Islands.  It is noted that the Cayman Islands, like the Jersey and Guernsey Islands provide a wealth of considered trust jurisprudence due to the number of cases heard and the similarity of the underlying statuary and common law … Continue reading

Ink vs litigation

On first glance Almond v Read, appears to have it all.  Arguments were made relating to the parties common intention, a constructive trust and breaches of fiduciary duty in the context of family owned land that was acquired with best of intentions.  However, over time, different parties adopted different views of the basis upon which a … Continue reading

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