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Eligibility for a residential care subsidy (RCS) is dependent on the applicant meeting stringently applied asset and means limits. Where assets have been transferred to a trust, an applicant can still qualify for a subsidy, provided that any amount of gift counted back, does not exceed the permissible asset threshold. Some people, who would otherwise qualify for … Continue reading
The decisions in Eden Refuge Trust make sobering reading for any person acting under a trustee’s instructions. The proceedings (see Eden Trust v Hohepa) relate to claims against a trustee for breach of trust and conversion, and claims against the solicitor acting for the trust for breach of fiduciary duty, knowing receipt and dishonest assistance. By way of … Continue reading
The Proceeds of Crime Act 1991 (since replaced by the Criminal Proceeds (Recovery) Act 2009) provides for the forfeiture of property used in the commission of a crime. In the case of Solicitor-General v Monk the property in question was a family home that had been used in the manufacture of methamphetamine. The fact that the home was owned … Continue reading
It is common for a modern deed of trust to provide for an appointor who has the power to add and remove trustees. Where the deed is silent regarding the appointment of trustees, recourse can be had to s. 51 of the Trustee Act, which empowers the court to appoint new trustees. Although, there is … Continue reading
When Alexander Pope wrote “To err is human; to forgive, divine” it is doubtful that his mind was turned to matters equitable. However, the expression is an apt description of the recent decision in Official Assignee v Mayers. This case considers whether the Official Assignee can recover gifts made by way of forgiveness of debt prior to … Continue reading
A bare trust arises where property is held by a trustee who can only act on the direction of the trust’s beneficiary. Bare trusts can arise inadvertently or by design. The recent decision in Mudgway v Tetra House Trustee Limited, which considers the sustainability of a caveat involves some consideration of whether the trust in question was a bare trust. See paragraphs … Continue reading
Approximately 19,000 New Zealanders in long-term residential care receive a residential care subsidy (RCS), that is financial assistance with long-term care once a person is no longer able to be cared for at home. To qualify for a RCS a person must first be able to show a limited level of assets. However, if a … Continue reading
Costs decisions could be considered pretty dull reading. However, if you are a trustee of a trust, you might be wise to upskill on how you might fare on the costs front if involved in court proceedings, regardless of whether you are pursuing or defending. While in some circumstances the trustee may be able to recover … Continue reading
Gifts made when insolvent can be voided, that is the gift is reversed. This means that if a person is bankrupted any gifts made within the 2 years prior to bankruptcy are voidable as against the Official Assignee (this means that any gifts must be paid back to the bankrupt’s “estate” and can be used … Continue reading
The fifth issues paper on the Review of the Law Trusts: “Court Jurisdiction, Trading Trusts and other issues: Review of the Law of Trusts” was issued today. The paper is available from the Law Commission. The paper will be progressively reviewed and commented on at the Review page of this blog.
Matters of Trust 