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Memoranda of Wishes

This category contains 10 posts

Mandatory or permissible and what about subsequent?

Memoranda of wishes are a common feature of trusts and are considered core documents for the purposes of the Trusts Act 2019 (see s 45(h).  However, what has been less clear is whether letters or memoranda of wishes can be updated over time; and if so whether later wishes can over-ride earlier wishes.  The matter … Continue reading

Turning of the tide?

McGuire v Earl is a successful application for the following trust information: statements of accounts copies of all Minutes and Resolutions any documents pertaining to any distributions all documents pertaining to any gifting or debt incurred, and bank statements for all bank accounts. The trust in question was settled by Mr McGuire’s father and Mr … Continue reading

Subordinate or insubordinate?

Trust settlors commonly provide a memorandum of wishes to the trustees. However, the extent to which the trustees are bound to follow these wishes is unclear. The traditional role of the settlor in the family trust has been simply the making of an initial settlement onto the trust, to be held by the trustee or … Continue reading

Memoranda of wishes

A nice idea or a reliable and permissible direction to trustees? Join Vicki Ammundsen to hear her views on memoranda of wishes:

Well intentioned

Miller v Cregten touches on the vexed issue as to settlor’s wishes to ensure that only identified beneficiaries benefit and that: “if a beneficiary is married, in order to protect the beneficiary from thepossibility of a matrimonial property claim in the event of a breakdownof his or her marriage, you should take into consideration the … Continue reading

Judgemental and pejorative

Law v Law relates to an application by trustees for directions under s 66 of the Trustee Act regarding the proposed distribution of trust assets. The background of the case is essentially set out at [24] as follows: “Again, the Trustees appear to have approached the question of the payments to Elena with a primary … Continue reading

Buyer’s remorse

Trusts can seem like a great idea.  And then one day a settlor can be confronted with the reality of the loss of control and cast around for someone to blame.  In addressing the realities of trust ownership, the exercise of powers of removal and appointment can offer a solution to issues with the dynamics between … Continue reading

More trustees sent to the naughty corner

Clement v Lucas concerns a family farming enterprise and illustrates the difficulties when beneficiaries cannot agree on how to give effect to the protections parents have put in place for the benefit of the beneficiaries. The contest at the heart of the matter was whether the trustees should distribute the trust assets equally between the … Continue reading

How afraid should we be of Clayton?

The Supreme Court decision in Clayton v Clayton changed the trust landscape.  But how afraid should we be?  Are all trusts vulnerable to Clayton-style challenge?  Or just the ones that push the envelope?  And, if the latter, how far can one push before there is a problem? A recent decision of Moore J has provided … Continue reading

Update on memorandum of wishes case

“The last of the Memoranda shows that Mr White Senior wished each of his three children to enjoy the benefit of his estate equally and that the property be sold to one of his three children. We will return to the words of the Memoranda in due course.” Thus starts the Court of Appeal decision … Continue reading

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