This book is only available in PDF format

Published: 9 June, 2011
Pages: 339

Trusts are an increasingly important part of legal practice.  Practitioners need to be aware of current developments in trust and estate law.  The papers from the 2011 NZLS Trust Conference cover some important topics.

The medical approach to the assessment of capacity

Dr Bede McIvor explains how to get the best from a medical expert when issues of capacity and mental competence arise.  Ensuring medical experts understand what report is required from them (and its purpose) helps ensure you get a report that is useful.

The impact of incapacity on the exercise of powers

Juliet Moses provides the legal response to issues of capacity and mental competence.  This paper reviews the different tests which apply – and the different consequences which arise – when a client’s medical capacity is called into question.  This paper reviews capacity requirements in relation to wills, enduring powers of attorney and trusts.

A way with words – will and trust drafting

Two recent English decisions illustrate the dangers of continuing to take instructions and draft documents mechanically.  Clients need to understand documents they are signing.  Chris Kelly and Mary-Joy Simpson look at a number of newer precedent clauses for both wills and trusts, with an emphasis on clear language.  Techniques such as using an appointor or protector are also explained.  They also explain the benefits of a letter of wishes, setting out the purpose of the trust as your client would like it to be explained.

Wills update

Professor Nicola Peart and Greg Kelly review the number of cases that have arisen already under the 2007 Act.  Two areas of particular importance are the power to validate a will which has not been correctly signed and the power to rectify defective wills.  They also give an update on family protection, testamentary promises and the application of the PRA after death.

Trustee litigation in the family context

When a marriage or de facto relationship breaks down, there can be a collision between family law and trust law.  Vanessa Bruton and Bruce Corkill review the bundle of rights argument, recent cases under s 182 of the Family Proceedings Act as well as equitable principles relating to shams, constructive trusts and claims for breach of trust.  There is a useful appendix setting out the range of tools that can be used in the Family Court and in the High Court, with relevant case references.

Lawyers: conduct and client care rules, conflicts of interest

Ingrid Taylor looks at the new LCCC rules, the importance of independent advice and informed consent.  It is still possible to act for two clients in many circumstances but it is important to understand when you have crossed the line and when clients need to be sent to someone else.

Solicitor trustee charges

Richard Burcher’s latest survey reviews what solicitors charge for acting as a trustee and the risks of being a trustee.  Comparison with Statutory Trustee Corporations is also instructive.

Powers of appointment and powers of advancement

Jared Ormsby and Jeff Kenny consider the lessons to be learnt from the Supreme Court decision in Kain v Hutton.  The case involved both powers of advancement and powers of appointment and the differences between them.  Trustees need to know which power they are able to use and in what circumstances.

Running a trust: caution road works ahead

Chris Kelly discusses the implication of the abolition of gift duty, the personal liability of trustees when entering into a contract as trustee, trust investment and trustee’s duties of even-handedness.  Many older trust deeds fail to deal with issues such as “self-dealing rule”.  It is often assumed that trustees can act in their own interest or that the settlors may be the only beneficiaries to receive any benefit for many years.  The dangers of these assumptions are now becoming more obvious.

Running a trust – road closed no entry

Jessica Palmer looks at the problem of control by trustees and when this is authorised and when it is excessive.  Ways to attack the validity of a trust such as sham and alter-ego are considered along with recent overseas decisions relating to when a trust may be considered illusorily.

Trustee investment vulnerability

Tony Molloy QC reviews the rules relating to trustee investment, the pit-falls many trustees fall into and advice about how to avoid these.

Trustees indemnities, equitable liens, subrogation and caveats – has the law taken a wrong turn?

Bill Patterson looks at recent cases relating to trustee’s duties and the trustees charge or lien and indemnity over trust assets for liabilities incurred.

Tax issues

Stephen Tomlinson discusses what the repeal of gift duty will mean for trusts in New Zealand.  Other recent changes to tax law include the associated person rules and distribution of beneficiary income.

The legal concept of charity – do we need it and if we do, how should we deal with the difficulties it creates?

Ian Millard QC and Kerry Ayers summarise the cases arising under the Charities Act 2005.  With one exception, the High Court has backed the Charities Commission in applying the traditional legal concept of charities.  That many of these organisations believed they were charitable, until the High Court told them otherwise, suggests that the legal concept of charity is not well understood.

Authors

Chair: Greg Kelly.  Author(s): Kerry Ayers, Vanessa Bruton, Richard Burcher, Bruce Corkill QC, Sir Grant Hammond, Chris Kelly, Greg Kelly, Jeff Kenny, Dr Bede McIvor, Ian Millard QC, Tony Molloy QC, Juliet Moses, Jared Ormsby, Jessica Palmer, Bill Patterson, Professor Nicola Peart, Mary Joy Simpson, Ingrid Taylor, Stephen Tomlinson