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It is not uncommon for discretionary trusts to varied with the assistance of the court, which is provided for in the Trustee Act 1956 (s 64, 64A). However, the recent decision in the Matter of the Estates of Earl and Beverley Stick highlights the fact that s 64A can also be used to vary will trusts … Continue reading
It is conceded that liberties have been taken with the heading due to space limitations. The point, that cannot be emphasised too much, is that at the most basic level trusts exist to hold, manage and protect, property, for the benefit of the beneficiairies. Not the trustees. A trustee’s liability between the trustee and the … Continue reading
The decision in the Southland and Scottish Hall Community Trust case raises the important consideration of knowing what it is you are dealing with. In this case a declaration was sought as to whether the trust was a trust under the Trustee Act 1956, or a charitable trust under the Charitable Trusts Act 1957. The trust … Continue reading
A recent application for variation or rectification of the deeds of two mirror trusts highlights the need for careful consideration when drafting deeds of trust. The deeds in question define the Final Beneficiaries to include the husband/wife (as relevant) of each settlor. Some years later the husband and wife separated and their marriage was subsequently dissolved. The … Continue reading
Will trusts or testamentary trusts are the most common form of trusts. In this regard, your will is literally your last word. However, an extraordinary number of New Zealanders do not have a will. If you die intestate (legal speak for no will) your estate is distributed in accordance with the relevant formula in the … Continue reading
The lesser known “common intention constructive trust” is a difficult construct to appreicate. However, this form of trust although formally “institutional” rather than “remedial” can provide a solution where no other legal construct can. Part one of the lesson – the constructive trust Constructive trusts often had their genesis in relationship breakdowns where a legislative … Continue reading
The most recent version of the standard agreement for the sale and purchase of land includes a standard trustee limitation of liability clause (clause 16). However, this clause is only available to trustees who cannot benefit from the trust. So where trustees wish to limit their liability to the assets of a trust, and those … Continue reading
The devil is in the detail. Sometimes, so is the GST. Prior to compulsory zero rating of land transactions it was common to use the GST-refund to fund the deposit. However, in the event the sale did not go ahead, the GST needed to be re-paid. So if the deposit was forfeited then, well, that … Continue reading
Previous blogs have talked about the dangers of failing to differentiate between trust and the trust’s settlor (or some other “related” party). This is also the case when it comes to recognising who is entitled to deductions for trust expenditure. A TRA (Taxation Review Authority) decision, since upheld on appeal to the High Court (see Brown … Continue reading
It has been a long time in the making. Today (11 September) the Law Commission’s Report, Review of the Law of Trusts: A Trusts Act for New Zealand, was tabled in Parliament. The Report recommends the introduction of a new Trusts Act to replace the current Trustee Act 1956. The proposed new Trusts Act will be … Continue reading
Matters of Trust 