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Settlors

This category contains 17 posts

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

Dis-illusion

The long awaited Court of Appeal decision on the subject of illusory trusts should make unsettling reading for many a settlor, and perhaps their advisers too. The decision, which runs to 96 pages is substantial.  The message is mixed.  While the trust in question was found to be valid (illusion it turns out, is just … Continue reading

Trustees and dementia

The early signs of dementia can be subtle.  Although dementia can occur at any age, it is far more common amongst the older demographic. Accordingly, while lawyers and accountants, and trustees generally are rarely mental health experts, it is important to say alive to the early signs of dementia so that risks can be identified … Continue reading

Round 7 and counting

Some cases will never settle.  Stokes v Insight Legal is one of them.  In this most recent trip to the High Court the defendants (Insight Legal et al) have sought leave to appeal the High Court decision Stokes v Insight Legal [2014] NZHC 2475.  This decision was largely procedural and related to matters that had … Continue reading