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This category contains 79 posts

Resulting trust arises in contractual vacuum

The bare facts of Chang v Lee can be summarised as follows: Ms Lee purchases a property in Sunnynook Mr Chang (Ms Lee’s uncle) advances Ms Lee $275,000 of the $566,000 purchase price The advance was not a gift The terms of the loan advance were incomplete Mr Chang made the advance to Ms Lee on the … Continue reading

Foreign trust registration – who knows the whole truth?

As the 30 June 2017 deadline passed for the registration of foreign trusts with Inland Revenue under recent legislation following recommendations made by the Shewan Report, the unsurprising fact that fewer than 3000 of the more than 11,750 foreign trusts have formally registered has been seized on by politicians (and anyone else wanting to vent … Continue reading

Public Trust Crown Guarantee

The Government has advised that new legislation will shortly be introduced to remove the Crown guarantee of the Public Trust.  The reasoning given is that this is in line with government policy for the last several decades that Crown-owned commercial businesses should not have a competitive advantage through being Crown-owned. Public Trust  currently has an AA credit … Continue reading

One swallow does not a summer make

The expression “One swallow does not a summer make, nor one fine day; similarly one day or brief time of happiness does not make a person entirely happy” is attributed to Aristotle (384 – 322 BC). This proverb is perhaps apposite in the case of D v T. D (age 72) and T (age 59) … Continue reading

Trust case-law up-date

Feeling overwhelmed by the amount of new trust case law?  Help is at hand.  Vicki Ammundsen and John Brown are presenting a webinar on critical trust cases for 2017.  For more information see Webinar Series 2017 – Critical Trust Cases. Cases covered include: Marshall Family Trust and Godfrey v McCormick – critical analysis of whether … 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

Powers of appointment thwarted

The decision in Marshall Family Trust may require some reconsideration of how powers of appointment can be exercised following the appointor’s loss of capacity.  In that case the surviving appointor, who was also a trustee, lost mental capacity and quite properly needed to be removed as a trustee. An application was made for a vesting order.  … Continue reading

Gift or loan – that old chestnut …

This blog might just as easily be entitled “No-one ever said if only we hadn’t documented that loan agreement”.  Zhang and Li v Li relates to an advance of $335,500 from Ms Li’s parents to Ms Li and her husband. After Ms Li and her husband separated her position was that the advance was a … Continue reading

Foreign trust: Beneficiaries in charge

It is generally accepted that while beneficiaries are the recipients of trust assets at the trustees’ discretion, beneficiaries have relatively little in the way of enforceable rights. Beneficiaries can request trust information and can ask, but not compel, the trustees to distribute trust assets to them. It is not always appreciated that beneficiaries’ access to the … 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