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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
References to executors and trustees are routinely combined and treated as synonymous with each other. But are they? Actually they are not. While the distinction is often unimportant, in certain circumstances it is critical. The executor’s duties include obtaining a grant of probate, getting in all of the assets, paying outstanding (and future) debts including … Continue reading
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
I talk a lot about all the things that go horridly wrong for trustees and all the mistakes they make and how they can do better, try harder. But the difficulty for many trustees is that even if they know they are not doing a great job, they don’t actually know how to pick up … Continue reading
The relationship between trusts and relationship property agreements requires careful attention. Whether or not trustees can or should be party to a relationship property agreement is one of many important considerations. Another consideration is how debts owing by trustees should be treated for relationship property purposes. Importantly, if there is no relationship property agreement (and assets are … Continue reading
Powers of attorney and deeds of delegation can be useful, especially where a trustee may be absent from New Zealand for periods of time. However, the extent to which trustees can rely on decisions made where one trustee has acted in a personal capacity and under a power of attorney require consideration. Consider the facts in … Continue reading
The decision in Judd v Hawkes Bay Trustee Company Limited represents another tributary in the trickle of constructive trust cases. The facts are relatively straight-forward – trust settled after the end of the settlor’s marriage owns the family home, third wife (Ms Judd) aware of this, Ms Judd makes some direct and indirect contributions (40% was claimed, ultimate result equates … Continue reading
While much writing about trusts focuses on the intrinsic aspects of trusts that separate trusts from other forms of ownership, such as companies; there are areas where the same principles can apply to both. One of these areas is the principles of interpretation that apply when the terms of a trust are unclear. This is … Continue reading
Following the end of a relationship “going it alone” is a practical reality. However, where a trust was settled during the relationship, the extent to which one can “go it alone” needs to be carefully assessed. This reality, and the consequences of failing to address it are highlighted in the High Court decision in Nichols … Continue reading
The Supreme Court decision in Jennings Roadfreight Ltd (in liq) v CIR is an interesting example of a “notional trust”. The question to be determined in this case was whether money held by a company in liquidation (that owed PAYE to Inland Revenue) was held on trust for the CIR or was available to other creditors in … Continue reading
Matters of Trust 