//
archives

Trustee retirement

This category contains 19 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

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

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

A wander through trustee liability

The background to Fawcett v Official Assignee is relatively straight-forward, as is the result.  However, the highways and by-ways the decision takes to get there are a study in why very few people should be trustees, and even less would want to be.  The case relates to a poorly constructed pedestrian bridge that was ultimately ordered … 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

Debts owing by trustees “real”

When assets are transferred to a trust by a settlor the transfer is generally by way of gift or sale.  Where assets are sold there is a gift back that can be forgiven immediately, progressively or at some future date, if at all. Prior to the abolition of gift duty gifting programs were common and … Continue reading

What’s in a name?

The Court of Appeal decision in Cowan v Martin highlights the need to clearly identify when parties are acting as trustees or the trustees’ agents.  While in this case the agency argument may seem a little contrived, and is available only because of the commonality of capacity and parties, the case remains instructive. The lessons … Continue reading

Removal of trustee to avoid demand

Buying the family farm can seem a rite of passage.  However, given the value of most farms inter-generational assistance can be required so that this can happen.  Commonly, this assistance can take the form of an on-demand loan.  While not stated, the practical reality is that if the children stay in Mum and Dad’s favour, no demand … Continue reading