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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
Trusts are settled with the best of intentions – and given that a discretionary family trust can last for up to 80 years – long term intentions. However, when the settlors fall out, those intentions can fall victim to the relationship fall out. So what are the trustees to do? There may be trust property … Continue reading
On 22 December 2014, Inland Revenue released draft Public Ruling PUB0209: “Income tax — whether a beneficiary will be treated as a settlor”. The Public Rulings consider whether a beneficiary of a trust who has a current account can be a “settlor” of the trust for income tax purposes under s HC 27(2)(a) or (b) of the Income Tax Act 2007. … Continue reading
FATCA, for the uninitiated is an acronym for US (foreign account tax compliance act) legislation that was introduced to assist the US IRS recover tax from US taxpayers’ undeclared foreign income. FATCA has application in New Zealand by virtue of an inter-governmental agreement (IGA). There has also been legislative amendments made to NZ legislation to accommodate FATCA. … Continue reading
Some cases will never settle. Stokes v Insight Legal is one of them. In this most recent trip to the High Court the defendants (Insight Legal et al) have sought leave to appeal the High Court decision Stokes v Insight Legal [2014] NZHC 2475. This decision was largely procedural and related to matters that had … Continue reading
When a trustee relationship breaks down, if one of the trustees holds the power of appointment, it is important that that trustee does not rely on this power to presume future control. Consider the case of Nysse v Nysse. Mr and Mrs Nysse were co-trustees of a trust settled by Mr Nysse. The trust’s assets … Continue reading
Trusts are a bit like plants – tend them and nourish them and you can reap the rewards for years. Leave them alone and even if once well tended to, the plant can bolt or fail. The story that became Murrell v Hamilton provides a sad example of what can happen when trustees fail to collectively … Continue reading
If it were a movie the title might be: “Rosebud 2 – the edifice collapses further. The case of Rosebud Corporate Trustee Limited v Bublitz focused on whether the trust for which Rosebud Corporate Trustee Limited (Rosebud) acted was a sham. As a result of the court finding the trust to be a sham an agreement that Rosebud Trust purported to … Continue reading
The dispute over Huka Lodge (see the Fight Over Huka Lodge) highlights an element of certain trust-based relationships that can be overlooked. This is the ability for subsequent trust-related disputes to survive time-barring due to the passage of time. Michael Kidd and Alexander van Heeren were former partners in a successful partnership that amassed significant wealth … Continue reading
There are a large number of charitable trusts in New Zealand. The reason for this is not well understood: see How Charitable is New Zealand for some insight. One of the issues that arises, perhaps more in New Zealand than elsewhere, due to the number of charitable trusts, is that the trustees are not always … Continue reading
Matters of Trust 