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TPL12

Trusts for Property Lawyers

NZ $80.00
incl GST
Andrew Watkins Simon Weil
Andrew Watkins
Duncan Cotterill
Christchurch
Simon Weil
Morrison Kent
Auckland

Published: 19 November, 2012
Pages: 107

Introduction

Over the last 15 years the number of inter vivos trusts set up in New Zealand has significantly increased. Tax returns were filed for 245,800 trusts as at 31 March 2009, an increase of over 100,000 since 2001. As many trusts don't produce income and thus don't file returns it is likely that there are currently over 400,000 trusts  in New Zealand or about one trust for every ten New Zealanders.

Trusts can come under fire from a number of different groups: creditors, unhappy children, government agencies and the like but, by far the biggest and most vocal group is the disaffected partner or spouse following the separation from, or the death of, their partner.

Parliament responded in 2001 by passing amendments to the Property (Relationships) Act which were meant to capture more property for relationship property division and to compensate partners whose rights were defeated by dispositions of relationship property to a trust.

These provisions have generally been unsuccessful in ensuring that each party retains half of all assets created during their relationship. Much often depends on whether one or other of the parties had the foresight to set up a family trust and whether that trust will withstand the intense scrutiny it will be subjected to.

There is constant tension between relationship-property lawyers on the one hand who are endeavouring to ensure that their client receives half of all assets created during the relationship and trust lawyers on the other, who insist on the sanctity of the trust and settled core trust law principles.

Thrown into the middle of that mix is the property lawyer who will often receive instructions from one or both parties to prepare a family trust when the times are good and separation is the last thing on their minds. There is an expectation from the parties that the trust will be a castle or fortress which will protect both of them from every eventuality- a panacea from difficult creditors, government agencies, difficult children and former spouses or partners. Clients are often vague with their instructions and the unfortunate property lawyer is caught in the unenviable situation of having to try and achieve a good outcome for all parties at reasonable cost - a very difficult but not impossible task.

In this paper:
  • Simon provides a brief history of trust usage both before and after the removal of death duties in 1992 and he examines the traditional reasons for setting up trusts.
  • Andrew provides a brief overview of the main provisions of the Property (Relationships) Act as you need to be familiar with these in order to recognise and minimise or eradicate future potential claims
  • Simon discusses trust structures and asset planning including:
    - The gathering of relevant information.
    - Working with co-advisors (accountants, specialists etc)
    - Provision of relevant checklists
    - Analysing/designing structures for trusts – which type of trust is most appropriate and when? - Are other options better such as a company or a section 21 agreement?
  • Simon considers the Trust Deed.
  • Andrew considers what tools are available to successfully challenge trusts in the relationship property context, the creditor context and against trustees behaviour generally under general trust law. He summarises some recent developments in case law and provides a checklist of potential claims.
  • Simon discusses trust administration and looks at best practice.
  • Andrew looks at the future of trusts in the context of law reform.
We hope that by the end of this booklet you will have gained:
  • A clearer understanding of the various ways in which trusts can be challenged.
  • Some options for minimising the chances of those challenges being successful.
  • An appreciation of the interplay that is necessary between accountant, client and lawyer in order to achieve the best outcome for your client.
  • Some practical tips and checklists to assist you in your practice.

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