//
archives

Settlors

This category contains 20 posts

Trustees’ dilemma – how old is old enough to know?

The moral dimension of trusteeship arises in many contexts. The recent New Zealand court decisions concerning information obligations to beneficiaries, and the way this is dealt with in the new Trusts Bill, highlight the difficulty of judging what information is too much or too little to disclose. However, general principles on disclosure bypass the consideration … Continue reading

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

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

War of the roses

War of the Roses is a 1989 American film based on the 1981 novel The War of the Roses by Warren Adler. The film, which  co-stars Michael Douglas, Kathleen Turner and Danny DeVito chronicles the demise of a marriage  against the backdrop of a beautiful home that the couple, literally fight to the death over.  Trust disputes can be … Continue reading

Taxation of Trusts ed 3

  The taxation of trusts is a dynamic and ever-changing landscape. The third edition of Taxation of Trusts published this week (September 2016) has been up-dated to incorporate recent case law developments and legislative amendments.  The text also considers the application of FATCA to trusts and proposed new reforms to the disclosure rules and closely … Continue reading

The Supreme Court Writes Back

The long-awaited decision (issued in fact as two separate decisions) in Clayton v Clayton were released today (23 March 2016). The first decision relates to the Vaughan Road Property Trust (VRPT) and the second to the Claymark Trust. Background Mr and Mrs Clayton commenced a de facto relationship in 1986 and married in 1989. They … Continue reading

Positive exercise of discretion requried

In Shakespeare’s Henry IV, Part I when Prince Hal finds the cowardly Falstaff pretending to be dead on the battlefield, the prince assumes he has been killed. After the prince leaves the stage, Falstaff rationalizes “The better part of Valour, is Discretion; in the which better part, I haue saued my life” (spelling and punctuation … Continue reading

The capacity to trust

Testamentary capacity is relatively well traversed and understood and the principles set out in Banks v Goodfellow (1870) LR 5 QB 549, which has endured the passage of time, remain the leading authority on testamentary capacity.   The following statement from p. 567 of that judgment succinctly observes the elements of testamentary capacity: “As to the … Continue reading

When the going gets tough – litigate and litigate and litigate …

Some cases seem to have eternal existence.  The original matter of Spence v Lynch is one of these.  The are now at least 9 recorded decisions by my count named either  White v Spence or Spence v Lynch.  The first case was written up in this blog as Dominant trustee architect of loss.  The name was apt then, … Continue reading

Extricating assets from a jointly settled trust

While recent headlines might lead one to belive that trusts are falling down in the face of relationship failures, closer inspection would suggest that in fact this is not commonly the case.  There appears to be a significant distinction between trusts where both spouses or partners are settlor/trustees and cases where only one spouse or partner … Continue reading