This book is only available in PDF format

Published: 27 May, 2013
Pages: 122

Introduction

Discretionary family trusts are prolific in New Zealand. So are relationship breakdowns. When the two collide, dealing with the fall-out is challenging for both the party seeking provision from trust assets, and the party seeking to protect the trust assets.

Trust law is a minefield for practitioners, both when initial asset-protection structures are implemented, and when they are challenged following a relationship breakdown. Much of the minefield can be explained by a lack of coherent and principled development of New Zealand trust and relationship property law. This has stemmed from tensions between:

• respect for established internationally-applied principles of equity and trust law, which recognise the legitimate role in society of genuine trusts, and which hold trustees to the high standards required of their fiduciary position;

• the practical reality that in New Zealand many settlors (particularly when they are also the trustees) still regard the trust property as their own and exercise complete control over it. Such control has been recognised as legitimate^[1](within limits) but has sometimes driven the Courts to achieve perceived “justice” in any particular case before them, regardless of the legal ownership of the assets at issue; and

• the basic aim of New Zealand relationship property legislation to ensure that the fruits of a relationship are divided equally irrespective of the contributions by each party.

These tensions have been aggravated by the fact that the Family Court and the High Court each have different jurisdiction in respect of different statutes relevant to trusts and relationship breakdown.^[2]

Practitioners need to be well equipped to draft and implement asset protection structures whilst all is rosy, during the early part of a relationship, or to protect assets for generations to come. Trust deeds and relationship property agreements are important documents that require specific thought and precise documentation, bearing in mind the objectives of the client, the particular fact situation and the family dynamics. Using precedents without careful thought about how they need to be tailored to each unique situation is dangerous, and can lead to trusts or agreements being unravelled or set aside when challenged.

After a relationship ends, family law, especially the interface between trusts and relationship property, is a particularly challenging area. The legal issues are complex, and what tools are available, and what court(s) have jurisdiction is often a procedural quagmire. Moreover, we deal with clients who are often demanding, highly emotional and grief-stricken. Lawyers themselves are increasingly caught in the crossfire of family disputes.

The aim of this seminar is to provide you with both the practical tools to assist family lawyers to deal with trusts – both in the setting up and running of trusts and when trusts are involved in a dispute. The seminar will consider matters of substantive law, procedure and theory in order to fully equip the practitioner to best advise clients and manage risks.

The structure of this booklet is as follows:

1. In Chapter 1 we discuss the key principles and foundations of trusts. Knowledge and understanding of these principles is a useful tool to assist in the analysis of novel factual situations.
    
2. In Chapter 2 we discuss what practitioners might have in mind at the “rosy” stage when assisting clients with their estate and asset planning. This includes discussion of some common interfaces between trusts and relationship property law.
    
3. In Chapter 3 we turn to the “custard” stage – after the relationship ends. Chapter 3 sets out our view as to the appropriate approach when trusts and family law collide following a relationship breakdown, and the difficult issues around the Courts’ statutory, common law, equitable and inherent jurisdiction.
    
4. In Chapter 4 we put on our “acting for the plaintiff” hat, for a plaintiff who wants provision from the trust assets. We discuss the procedural and substantive tools and tactics.
    
5. In Chapter 5 we provide some observations relevant to the spouse who is also a trustee, who wants the trust structure maintained, and the assets kept for the beneficiaries, including (or principally) himself or herself.
    
6. In Chapter 6 we put on our “trustee advisor” hat, and discuss the importance of the role the “independent” trustee in maintaining the integrity of the trust; and avoiding being caught in the cross-fire.
    
7. In Chapter 7 we consider some of the issues that arise where a relationship ends by death, and a discretionary family trust is involved.

Authors

Author: Vanessa Bruton, Isaac Hikaka
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[1]     Kain v Hutton [2008] NZSC 61; Coles v Coles (1987) 3 FRNZ (CA).
[2]     Jurisdictional issues are dealt with in detail in Chapter 3.
See further Mark Vickerman, “Reclaiming Relationship Property Gifted to Trusts After the Abolition of Gift Duty” in “Cradle to Grave – The Interface Between Property and Family Court”, 21 March 2011, (Auckland District Law Society Inc 2011).