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Removal of trustees

This category contains 36 posts

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

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

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

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

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

Mixing oil and water

Trusts and marriage break ups are a tricky thing to manage – like trying to mix oil and water more often than not.  Some trustees can put personal differences aside and get on with it, most, it appears, can’t.  Often the pragmatic (and ultimately cost effective as it breaks deadlocks) solution is the removal of … Continue reading

Trustees left holding the baby

SWL Trustee Company Limited (SWL) is a trustee that acts together with two other trustees as trustees of a family trust.  As is commonly the case, two of the trustees (the instructing trustees) are also settlors of the trust.  The trust owns a number of properties.  All is fine, until it is not.  The trust owns a number of properties.  … 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