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Unless the terms of a trust provide otherwise trustees act gratuitously. See section 37 of the Trusts Act 2019. Importantly, where the terms of a trust do not provide for payment to trustees, the Court can order payment of remuneration pursuant to section pursuant to section 139 of the Trusts Act, which provides as follows: … Continue reading
In Hita v Hita[1] the deceased left his entire estate to one of his children. The background of matters is set out at [1] and [2] of Anderson J’s decision as follows: A secret trust is an arrangement between a will-maker and a trustee that is effective on death.[2] As noted by Anderson J at … Continue reading
McKean Family Trustee Limited v McKean (No 2) relates to an interlocutory judgment regarding whether the Trustee’s costs to defend removal proceedings and for proceedings seeking amongst other things a direction for the sale of a trust owned farm should be met from the Torwood Family Trust (the Trust). The background is set out at … Continue reading
Re Estate of Olive Ruby Piper relates to an application for an order declaring that a draft will prepared by Public Trust prior to Olive Piper’s death is her last will and testament pursuant to s 14 of the Wills Act 2007. The legislative basis is set out at [2] and [18] as follows: [2] … Continue reading
Can an attorney under and enduring power of attorney (EPOA) exercise settlor powers? The starting point is the terms of the trust instrument. The law prior to the Trusts Act was clear that an attorney under an enduring power of attorney (EPOA) could not exercise powers of appointment. The Trusts Act now permits this in … Continue reading
The original purpose of the self-dealing rule, which dates from at least 1725 was to enable a beneficiary of a trust to avoid any transaction involving a trustee’s purchase of trust property. The rule is rooted in a fiduciary’s duty of loyalty to his or her principal and is intended to apply “whenever a fiduciary … Continue reading
Exercise of discretion is a fundamental aspect of the role of trustees of discretionary trusts. However, in the context of a family trust that can span multiple generations, the correct approach to the exercise of discretion can be challenging. The decision by the Supreme Court of Victoria Court of Appeal in Owies v JJE Nominees … Continue reading
Mr Friend met Mrs Latika Sen in 2011 outside a diary. Mr Friend and Mrs Sen became friends and her family provided Mr Friend with friendship and support. Mr Friend had some ill-health and in 2013 he scored 23/30 on a mental state assessment, equating to mild dementia. Mr Friend was discharged from hospital to … Continue reading
Lendich v Codilla relates to an attempt to claim a beneficial interest in property sold at an undervalue where there was an agreed element of gift. The case also raises the question as to standing of directors and shareholders of a company that has been removed from the register of companies. The issues raised by … Continue reading
The Trusts Act 2019 came into full force and effect on 30 January 2021. A year later we have the benefit of court decisions regarding how the Trusts Act will be interpreted and followed in practice. Early decisions under the Trusts Act reflected, perhaps not surprisingly, applications for variation. Section 121 of the Trusts Act … Continue reading
Matters of Trust 