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trust

This category contains 25 posts

Two trustees go down to the woods … one is discharged, one is not

The use of corporate trustees is a common response to trustee liability.  However, where one of two natural person trustees retires and a corporate trustee is appointed, it is important to consider whether the retiring trustee has been discharged.  See ss 43, 45 and 46 of the Trustee Act 1956, which provide: Relevant Legislation 43 Power … Continue reading

Who pays the piper?

When a trustee retires, it is necessary to transfer the trust’s assets from the trustees (including the retiring trustee) to the continuing and any new trustee.    Where a trustee is removed in contentious circumstances the trustee may be unwilling to assist in the transfer of trust property.  Sometimes with good reason – for example where … Continue reading

Ouch

In Davis v White (see You aren’t my beneficiary – are you??) a trust was found to have failed by reason of uncertainty. The second hearing of the matter related to costs and is a sobering tale for trustees. Mrs White who incurred significant costs (AUD 40,893 and $85,369.50 in New Zealand, plus disbursements) said that the proceedings could … Continue reading

Using enduring powers of attorney to exercise trustee powers

The issue of incapacitated trustees is not a new one.  Trustees continue to age and many do not retire when they can still elect to do so.  This leaves the issue of removing incapacitated trustees and transferring property held by them to continuing and new trustees. While it is generally accepted that an attorney under an … Continue reading

Erceg Appeal dismissed – exceptional circumstances not to disclose

What information can a discretionary beneficiary of a trust request from the trustees? If the beneficiary has been bankrupted, does that mean they no longer have personal rights to request information? The Supreme Court has now expressed its view on these issues and has upheld the earlier Court of Appeal decision. However, the Supreme Court’s judgment … Continue reading

A sorry tale …

As noted in the judgment McLaren v McLaren at [1]  this case relates to “… a sorry tale of what can occur when a family adopts an inappropriate form of trust deed without adequate advice or sufficient understanding of the legal effect of its terms. In this case, a son who was given a power … Continue reading

Assetless Corporate Trustees – commercial monstrosity?

Corporate trustees are a common feature of modern trading trusts.  The basic rationale is that the use of a company means that any liability that would otherwise accrue – say to a natural person trustee – accrues instead to the company and provided the directors do not breach the duties owed under the Companies Act … Continue reading

What makes a settlement nuptial?

Following the Supreme Court decision in Clayton v Clayton (Claymark Trust) fresh light has been shed upon the scope of s 182 of the Family Proceedings Act 1980 in the case of Da Silva v Da Silva. By way of background s 182 gives the Court the discretion following divorce (the section does not apply to de facto relationships)  … Continue reading

Trusts and puppies

When settling a trust it can be useful to consider what happens next.  In this regard the settlement of a trust can be likened to that moment in the pet shop where this adorable puppy all paws and nose and licky tongue and waggy tail and soulful eyes uses its artillery of cuteness to attack … Continue reading

Whose house is it?

The transfer of a family home to a trust is a relatively routine occurrence.  The general order of events is: settle trust execute agreement for sale and purchase carry out any  gifting get bank consent register transfer What happens if the last step does not occur? Has the sale in fact been effected?  Particularly in … Continue reading