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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
Te Aka Matua o te Ture | Law Commission has published its final report in the Review of Succession Law project. The report, He arotake I te āheinga ki ngā rawa a te tangata ka mate ana | Review of succession law rights to a person’s property on deathon is available on the project page … Continue reading
Family financial arrangements are commonly not recorded in writing. For this reason questions as to whether a prior advance was a loan or a gift are not uncommon. Comins v Public Trust represents an unsuccessful application for a declaration that a sum of $50,000 was a gift, in circumstances where the deceased’s will provided that … Continue reading
Hey v Hey relates to a mother and son in dispute regarding the mother removing her son as a trustee of the trust that the mother settled with her now deceased husband. The trust in question (the BMA & DCL Hey Family Trust (the Trust)) was settled by Brian and Dorothy Hey. The trustees were … Continue reading
The decision in Enright v Enright has been successfully appealed and cross appealed (in part). The fundamental conclusions reached in the High Court have been upheld, but with some significant finessing. the Limitation Act defence has been overturned on the basis of a reasonable assessment of when a person in the applicant’s situation, with comparable education … Continue reading
Matters of Trust 