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Trusts for Company and Commercial Lawyers 2015
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This book is only available in PDF format
Authors: Juliet Moses, Jared Ormsby
Published: 25 March 2015
Pages: 87
Introduction
As well as top rugby players, sheep and DIYers, New Zealand is thought to have the most number of family trusts per capita of anywhere in the world. As such, they are an integral and very significant part of the fabric of our economy and society, let alone our legal industry.
Therefore, for any lawyer, it is imperative to have an understanding of the fundamentals of a family trust – what it is, settlors and beneficiaries and their rights, the duties and powers of a trustee, what can be expected of a standard trust deed, and dealing with trust disputes.
It is also incumbent upon company and commercial lawyers to have an understanding of how their area of practice may be affected by trusts, and conversely the impact that their area of practice can have upon trusts. Traditionally, a trust has been considered to be a mechanism for the preservation and conservation of property for the benefit of the objects of the settlor’s bounty (the beneficiaries). However, in recent decades, the trust has become increasingly used as a structure through which commercial enterprise and risktaking is undertaken. The law has not kept pace with these developments in many respects, which can make the job of a company or commercial lawyer much harder when that job involves trusts.
One particularly thorny set of issues relates to insolvent trusts and the enforcement of creditors’ rights and remedies. There is also a very unique and specific set of legal issues that is attributable to the interplay and tension between trust law and company law – either when a company is a trustee, or when a trustee owns a company. Professor H A J Ford, a renowned Australian trust jurist once famously described the “fruit of this union of the law of trusts and the law of limited liability companies [as] a commercial monstrosity.”1
The purpose of this seminar is not to turn you into a trust specialist, but to assist you to perform your job more effectively as a company or commercial lawyer. Hopefully you will gain an understanding of what issues to look out for, how to mitigate risks and maximise opportunities, and when to seek specialist advice.
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1 Ford, Trading Trusts and Creditors’ Rights (1981) 13 Melb U L Rev 89 1.
Content outline
- The principles and purpose of trust
- The key players int he family trust
- Trustees and their duties
- Beneficiaries' rights to information
- Other types of trust - charitable and constructive trusts
- Trust deed provisions
- Introduction to the fundamental principles of a trustee's liability to creditors
- Contracting with trustees
- Corporate and commercial issues and risks
- Directors' duties
- Trust disputes
- Trust ownership of companies
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