This category contains 124 posts


The H J Bourke Family Trust (the Trust) vested in May 2019. The question for the Court was whether the following clause include the grandchildren with the children on a final distribution. “AFTER the expiration of the settlement period to stand possessed of the trust fund (including the said accumulations if any) being so much … Continue reading

The cost of being wrong

The case of Unkovich v Clapham provides an excellent example of the difficult decisions trustees must make when seeking to uphold decisions made by them in the face of opposition.  It is useful to first consider the principles that apply to trustee decision making, which are set out at [47] and [48] as follows: [47] … Continue reading

Back to Benjamin

Triple A Trustees Limited relates to a practical aspect of trusteeship, which is, the transfer of assets from one trustee to another without subsequent liability arising from doing so. The Triple A Trust (the Trust) is a foreign trust with a New Zealand resident trustee. Parties associated with the Trust were subject to United Kingdom … Continue reading

Capacity to pay

The Court of Appeal decision in Biggs v Biggs highlights the cost of litigation, whether on the side of the angels or otherwise. In this case the wife has incurred costs to date in excess of $1 million, which her evidence is, that she cannot pay. The husband’s costs are half that of the wife. … Continue reading

Put a ring on it

Beyoncé instructs in Single Ladies (Put a Ring On It) the importance of not relying on assumptions or expectations.  The same might be said in Sutherland v Lane, the background of which is set out at [1] of the judgment as follows: “Michelle Sutherland had a close relationship with her uncle by marriage, the late … Continue reading

Caveats to reach backwards in time?

Stafford v Accident Compensation Corporation explores the limits to proprietary claims that will support a caveat. The facts of the matter are complex.  However, the key points are as follows: the claim is founded on the Supreme Court decision Proprietors of Wakatū v Attorney-General, which is summarised as follows in Stafford: [5] In 1839, William Wakefield … Continue reading

No good deed goes unpunished

Daisley v Ark Contractors Limited relates to a commercial venture that came into fruition over a decade ago.   The venture involved transfer of properties owned by the first (Daisley) and second (SDD Limited) plaintiffs, which were about to be sold at mortgagee auction. The Kellers (the second defendants) contributed capital  and setting up the first … Continue reading

31 or 32, what is the Court to do?

In Re Estate of Kamo relates to the interpretation of a clause in a will that on the face of it, offends the rule against perpetuities.  The clause in question provides that: “I DIRECT the residue of my estate shall be administered by the Public Trustee as Trustee to provide a scholarship to be known as … Continue reading

Incipiently insolvent

Sometimes, an estate will be known to be insolvent from when the individual dies. If the deceased was already declared prior to death, the Official Assignee (OA) carries on as normal. But what happens if it becomes apparent sometime after death that the estate is insolvent and how does this affect the executor/trustees? This issue … Continue reading

Wills during the pandemic

  The Epidemic Preparedness (Wills Act 2007—Signing and Witnessing of Wills) Immediate Modification Order 2020 (the Order), is a temporary order that was made under the Epidemic Preparedness Act 2006. The Order came into force on 17 April 2020 and will be revoked when the Epidemic Preparedness (COVID-19) Notice 2020 expires or is revoked. The … Continue reading