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No man is an island. Nor is any trust. An important, and often overlooked facet of asset and estate planning is the imposition of other legislative regimes. The cases that comprise the Herbst v Herbst litigation are a good illustration of the result of failing to consider this adequately. The facts of the cases are … Continue reading
First off, what is FATCA? FATCA is an acronym that stands for Foreign Account Tax Compliance Act. This is an American initiative, with global reach, that places on-going obligations on non-US financial institutions to verify and review accounts to establish whether the account is held or ultimately controlled by a US person. Unless the U.S. … Continue reading
Blended families pose numerous challenges. On the death of a parent balancing the needs of that parent’s children and a surviving step-parent can be challenging. Add a trust and some last-minute asset and estate planning into the mix and the potential for conflict increases. Consider the position of the children who believe themselves to be … Continue reading
Death and taxes are often cited as the only certainties. While these can be prepared for, sometimes, things change. Even where a sensibly drafted will is in place, circumstances that might not have been foreseen can arise. Sometimes at a time where the will-maker can no longer intervene. Where the issue relates to the appointment of … Continue reading
Allegations of sham are commonly made, but rarely made out. Accordingly the case of Rosebud Corporate Trustee Limited v Bublitz makes interesting reading. The judge does not keep us in suspense long, coming out with his finding at p. 5 that the trust is a sham. One of the major players in this story is one … Continue reading
The Financial Markets Authority (FMA) has filed civil proceedings against Prince & Partners Trustee Company Limited (“the Trustee”) using the powers of section 34 of the Financial Markets Authority Act (see below). The Trustee was the trustee for finance company Viaduct Capital Limited, which collapsed in 2009. The FMA alleges that the Trustee breached the obligations it owed to … Continue reading
Beneficiaries are often disappointed in the actions and decisions of trustees. Sometimes with cause, sometimes without. However, few beneficiaries seek court assistance, despite their right to do so. It is presumed that this is for reasons that include the difficulties in galvanising classes of beneficiaries to take action, the cost of doing so; and in many … Continue reading
Discretionary family trusts can last, at present, for up to 80 years. While the Law Commission has suggested this should be extended to 150 years, in many circumstances just 80 years is too much. Trusts take management and prospective planning, and sometimes good management means making practical decisions that people might not like. It also means … Continue reading
Corporate trustees are a common feature of modern trusts. Professionals increasingly act through corporate trustees to address concerns over liability. While some concern has been raised about the wisdom of utlising uncapitalised corporate trustees – the practice is widely acknowledged and accepted. Where views diverge is on when or whether corporate trustees should accept multiple appointments. Unless … Continue reading
It is fundamental to the role of a trustee that the trustee must act in the best interests of all of the beneficiairies. This obligation can be sorely tested when the trustees are separated spouses or partners. Many do not pass the test. When trustees cannot work together the prudent course of action is for … Continue reading
Matters of Trust 