Trusts
Get copies of Anthony's articles on Trusts by email
Anthony maintains a separate list for electronic distributions of his articles and Grant's Trusts and Wills Reports. If you would like to receive electronic copies of these publications please send an email to: raxa.fernandesThis email address is being protected from spambots. You need JavaScript enabled to view it. and ask to be added to the list.
Some Papers delivered at specialist conferences
“Trusts & Wills – Issues to consider for new beneficiaries” – A Paper delivered to members of the Auckland District Law Society at the “Cradle to Grave” Seminar on 27 March 2006:
“Dealing with property when it is in a Trust” – A Paper that was delivered to the Auckland District Law Society Property Conference, entitled “The Interface Between Property and Family Law” which was held in Auckland on 26 March 2007.
“Section 182 of the Family Proceedings Act” – A Paper that was delivered to the Auckland Branch of the Society of Trusts and Estates Practitioners (STEP] in Auckland on 22 August 2007.
"Changing a Trust by the use of s 182 of the Family Proceedings Act 1980" - A Paper that was delivered to the Auckland District Law Society conference at the "Cradle to Grave" Seminar on 14 April 2008.
"Lessons from the Supreme Court decision in Kain v Hutton" - A Paper that was delivered to members of the Auckland District Law Society at the "Cradle to Grave" Seminar on 4 May 2009.
"The Case for the Spouse or Partner" - A Paper that was co-written and presented with Professor Nicola Peart for the New Zealand Law Society's biannual Trusts Conference that was held in Auckland and Christchurch in 2009.
"Some interesting new developments in the law of Trusts" a talk to members of the Auckland Branch of STEP on 31 August 2009
“The fiction of beneficiaries' rights and what should be done about them" – An address given at the Legal Research Foundation's programme on 28 August 2009 on "A Modern law of Trusts".
"The Bundle of Rights Doctrine - What is the Law" - A Paper that was delivered to the Auckland District Law Society Conference entitled "Cradle to Grave - The Interface Between Property and Family Law" - on 22 March 2010.
"Distrust of Family Trusts - The Changing Landscape" - LexisNexis Webinar, April 2010.
"Trust Busting" - Accounting Special Interest Group: NZ Institute of Chartered Accountants, 8 July 2010.
"Recent Trust Cases" - Trusts Special Interest Group: NZICA, 20 July 2010.
"What practitioners need to know to avoid Family Protection and Relationship Property claims" - Auckland District Law society Seminar "Resolving End of Life Issues: Where there's a Will there's a way" - 27 July 2010.
"Trusts - Specific Top Topics" - Auckland 24.9.10 and Wellington 6.10.10. LexisNexis Conference entitled "Trusts, Wills and Elder Law".
"How the courts can successfully attack trusts and how to stop them from doing so" - A Paper that was delivered to the Auckland District Law Society conference at the "Cradle to Grave" Seminar on 21 March 2011.
"Some Trust developments that have not yet been publicised". Address to STEP, Auckland 7 November 2011.
"Trustee liability - Professionals at Risk". Address to Trust SIG, Auckland, 15 November 2011.
"Understanding Insolvent Trading Trusts" - Address to LexisNexis Insol Conference, Pullman Hotel, 9 March 2012.
"Trustee Liabilities and Other Matters" - A Paper that was delivered to the Auckland District Law Society Conference at the "Cradle to Grave" Seminar on 26 March 2012.
"Constructive trusts - a shadow falls over the assets of Express Trusts" - A speech delivered at the Conference held by the Society of Trusts and Estate Practitioners on 30 October 2013 in Auckland.
"Assessing Testamentary Capacity and other capacities" - A Paper that was delivered at the Auckland District Law Society Conference "Navigating the Shoals: Client Care and Capacity for the Potentially Vulnerable Client" on 19 November 2013 in Auckland.
“Constructive Trusts – The current threat to Family Trusts” – A Paper that was delivered at the Auckland District Law Society “Cradle to Grave” Conference – The interface between property, trust and family law” – 7 and 10 April 2014.
"Trustee Deadlock. Possible Solutions. Applications to the High Court for help. What are the procedures. Who pays?" - A Paper presented at the CCH "Trusts, Succession Planning and Estates Conference" held in Auckland on 10 September 2014.
"Retrospective decisions and their unfair consequences" - A Paper that was delivered to the Trusts SIG in Auckland on 17 March 2015.
"Why Trusts are more important than ever and how to increase the prospects of protecting them from attack" - A Paper that was delivered to the 2015 Cradle to Grave Conference organised by the Auckland District Law Society.
"Think very seriously before agreeing to be a Trustee" - A Paper that was delivered to the 2016 Cradle to Grave Conference organised by the Auckland District Law Society.
"How to make sense of the latest confusion about Trusts" - A Paper delivered at the 2017 Cradle to Grave Conference organised by the Auckland District Law Society.
"Pot Pourri" - A Paper delivered with Dr Andrew Butler at the 2017 Bi-annual Trusts Conference organised by the New Zealand Law Society.
An address with a general update on the law of Trusts delivered to the Company Accountants Special Interests Group in Auckland on 19 July 2017.
Articles
The following articles were published in NZ Lawyer and New Law magazines.
18 April 2008: Frustrating the Court's power to modify Trusts.
22 August 2008: Calling a Sham a Sham.
6 March 2009: 'Playing' with Trusts.
20 March 2009: The personal liability of Trustees.
3 April 2009: Trustees and liability for defective buildings.
17 April 2009: Trusts - an international rebuke for our Courts.
1 May 2009: Section 182 of the Family Proceedings Act 1980: the Court of Appeal speaks twice in two months.
15 May 2009: Section 182 - the High Court applies Ward v Ward and creates three new Trusts.
29 May 2009: The Supreme Court, Trusts, Alter Egos and Shams.
12 June 2009: Annihilation by stealth of separate property.
26 June 2009: The Supreme Court and questionable jurisprudence.
10 July 2009: Removing Trustees - some recent cases.
24 July 2009: When can Judges re-write Trusts?
7 August 2009: Effective control and Sham Trusts.
21 August 2009: High Court says it can ignore a debtor's trust.
4 September 2009: When Trustees can benefit a non-beneficiary.
19 September 2009: New Zealand's sham Trusts - facing international criticism.
16 October 2009: Sham Trusts and Constructive Trusts over assets of a Trust.
29 October 2009: Trusts - The Bundle of Rights - Is it good law? (Part 1).
6 November 2009: Book Review: Equity & Trusts in New Zealand - 2nd Ed 2009.
27 November 2009: Trusts - What documents is a beneficiary entitled to see?
11 December 2009: The Bundle of Rights doctrine: Is it good law? (Part 2).
22 January 2010: The Supreme Court interprets s182 of the Family Proceedings Act.
5 February 2010: The Bundle of Rights turns Trust to dust.
19 February 2010: Ward v Ward: Which Trusts are likely to get the judicial chop?
5 March 2010: A Trust in disguise is set aside.
19 March 2010: The Bundle of Rights: Is it good law? (Part 3).
2 April 2010: Trustees who delay are made to pay.
16 April 2010: The Ruinous Risks of Trusteeship.
30 April 2010: The risks of relying on instructions from a Trustee.
28 May 2010: The High Court enlarges the liability of trustees.
11 June 2010: Changing multigenerational Trusts against a settlor's wishes.
25 June 2010: The Bundle of Rights doctrine: Can appointors do whatever they want?
9 July 2010: The practical problems of having a corporate trustee for several Trusts.
23 July 2010: Separate Property. Parliament should amend s9A of the PRA.
6 August 2010: Varying Trusts to take advantage of more favourable tax regimes.
20 August 2010: The documents trustees must provide to beneficiaries.
3 September 2010: Access your partner's computer at your peril!
1 October 2010: The Courts find a new way to break into Trusts: "Pay up or go to jail!"
15 October 2010: Variation of Trusts - Justice Potter sets out guidelines for success.
29 October 2010: Our laws make marriage too risky.
12 November 2010: How to get STI Syndrome ("Serious Trustee Insomnia").
26 November 2010: The Bundle of Rights doctrine converts Trust property into separate property.
10 December 2010: Article: An overseas Court says a Court of Appeal decision was "illogical" and "unfair".
10 December 2010: PDF version of Coutts v Lemos, referred to in the above article: An overseas Court says a Court of Appeal decision was "illogical" and "unfair".
28 January 2011: Trusts: The Courts find two more ways to winkle assets out of Trusts.
28 January 2011: PDF version of Taranaki Regional Council v Mouland referred to in the above article: The Courts find two more ways to winkle assets out of Trusts
11 February 2011: Sham Trusts - a more expansive definition.
25 February 2011: Brass monkey order freezes trustee's assets.
11 March 2011: Book Review: "Drafting Trusts in New Zealand" by James Kessler QC and Kerry Ayers, Thomson Reuters.
8 April 2011: QC says Supreme Court "misstates" the law and prefers "form over substance".
21 April 2011: Rules of interpretation have led to "the parlous state of modern commercial litigation".
PDF version: Implications of Chartbrook Ltd v Persimmon Homes Ltd for the Law of Trusts: The Hon. Justice J D Heydon. Referred to in the article published on 21 April 2011.
6 May 2011: What will the Law Commission say about Trusts?
6 May 2011: Should our Supreme Court have "the Hong Kong enhancement"?
20 May 2011: The Bundle of Rights 'doctrine' is wounded. Will it die?
3 June 2011: Should the Supreme Court have some Non-Permanent Judges from overseas?
17 June 2011: The New Zealand Law Society's wish list for Trust law reform.
1 July 2011: Parliament deems a non-beneficiary to be a beneficiary.
15 July 2011: To what extent can trustees limit their liability for loss?
29 July 2011: Will the Bundle of Rights be reborn?
12 August 2011: Trusts, financial advisers, and exclusion clauses
26 August 2011: What Trust documents is a beneficiary entitled to see?
9 September 2011: An important case on shams, the interpretation of Trust deeds, and Trustees' duties to invest.
23 September 2011: The Supreme Court - tax avoidance - and consequences for trustees.
7 October 2011: Varying Trusts with the use of section 182 of the Family Proceedings Act - a brief international comparison.
4 November 2011: The IRD goes hunting for professional trustees.
18 November 2011: A lesson in the mismanagement of Trusts.
2 December 2011: The President of the Court of Appeal talks about the "Bundle of Rights".
16 December 2011: A Family Court breaks trust after trust.
27 January 2012: The Court of Appeal considers when a disposition to a trust is an attempt to defraud a creditor.
10 February 2012: Clauses that exonerate trustees from fault may be worthless.
24 February 2012: Can creditors claw back gifts from trusts?
9 March 2012: The alter ego doctrine in South Africa.
23 March 2012: Justice Winkelmann and sham trusts.
5 April 2012: Alter Ego Trusts - a Company Law analogy.
20 April 2012: Justice Heath predicts the death of the Bundle of Rights "doctrine".
4 May 2012: The price a lawyer may have topay for acting for an "unreliable" client.
18 May 2012: The future of Trusts.
15 June 2012: Trustees - the need for unanimity in decision making.
13 July 2012: A tale of two trusts and how the 'bundle of rights' doctrine and the alter ego doctrine affected them.
27 July 2012: Some developments of interest from the USA and Australia.
10 August 2012: "Might the Bundle of Rights theory emerge in another form?" PDF version of 'Discretionary interests and rights to replace trustees: Can they be property? by Tobias j Barkley' thesis.pdf (the Thesis is 169 pages and may take a while to upload)
25 August 2012: "The Court of Appeal liquidates a law firm's trustee company and threatens its directors".
14 September 2012: "The liability of the innocent Trustee: how innocence and loss can go hand in hand".
5 October 2012 "There is no such thing as a sham Trust"
"There is no such thing as a sham" PDF version of Paper by Steven Li
19 October 2012: "How to create Trusts that will endure: Justice Fogarty".
2 November 2012: "Conflict between trustees and beneficiaries: when can a trustee be removed?"
16 November 2012: "The Court finds a new way to take assets from trusts".
30 November 2012: "How the Law Commission would like to change the law of Trusts".
14 December 2012: "Relationship property and trusts - the Law Commission's current proposals".
25 January 2013: " 'Trust busting' in the Family Court - don't rely on it".
8 February 2013: "Sham trusts - a concise summary of the law".
22 February 2013: "The Court's jurisdiction to appoint receivers to a trust".
8 March 2013: "Piercing the corporate veil - an analogy with the law of trusts".
22 March 2013: "Bringing the Trustee Act 1956 into the twenty first century".
5 April 2013: "Illusory trusts - a new doctrine to invalidate trusts? Part 1".
19 April 2013: "Illusory trusts - a new doctrine to invalidate trusts? Part 2".
17 May 2013: "Illusory trusts - a new doctrine to invalidate trusts? Part 4".
3 May 2013: "Illusory trusts - a new doctrine to invalidate trusts? Part 3".
31 May 2013: "Sixty-six per cent of lawyers can't tell if a client lacks testamentary capacity".
14 June 2013: "A lawyer trustee learns to his cost that there's no such thing as a "passive trustee".
28 June 2013: "The perils of practice: a trusts lawyer who acted for a devious trustee loses his licence".
12 July 2013: "The Supreme Court in London turns the ownership of properties on its head: Part 1".
26 July 2013: "The Supreme Court in London turns the ownership of properties on its head: Part 2".
9 August 2013: "Removing honest and well-intentioned trustees for incompetence".
22 August 2013: "Common intention constructive trusts".
6 September 2013: "Companies lose their assets to resulting trusts and common intention constructive trusts: Part 1".
20 September 2013: "Companies lose their assets to resulting trusts and common intention constructive trusts: Part 2".
4 October 2013: "The Law Commission says family trusts created since 1977 should be open to retrospective judicial modification".
18 October 2013: "The Law Commission's proposals to cause havoc for family trusts"; "A trust intended to deceive the Court, the revenue, and a husband is not a sham".
1 November 2013: "The limits of limitation of liability clauses".
1 November 2013: "A passive lawyer trustee is made to pay taxes and penalties".
29 November 2013: "Goodbye Bundle of Rights. Hello constructive trusts".
9 May 2014: "Constructive Trusts: the new threat to family trusts": Part 1.
13 June 2014: "Sham transactions".
11 July 2014: "When will the Court order the removal of a trustee?"
8 August 2014 "A wife takes half the assets of a very big trust".
5 September 2014: "A beneficiary's right to see Trust documents".
3 October 2014: "How to stop beneficiaries from obtaining information ...".
7 November 2014: "Trusts: The requirement for uninomity in decision-making".
5 December 2014: "The risks of removing Trustees who do not do what you want them to do".
5 June 2015: "Has the Bundle of Rights been reborn?" Law Talk
The following articles were published in Law News, the newspaper of the Auckland District Law Society.
26 May 2016: "The fate of Family Trusts following Clayton". Law News
24 June 2016: "The Constructive Trust heresy". Law News
22 July 2016: "Clayton, The Supreme Court and the rule of law". Law News
2 September 2016: "An important case on Constructive Trusts and settlor control". Law News
23 September 2016: "Effective control and sham Trusts". Law News
14 October 2016: "Constructive Trusts for domestic services". Law News
11 November 2016: "Constructive Trusts to reward housekeeping, Part 2". Law News
9 December 2016: "Changes to the law of trusts and what you might do about them". Law News
17 February 2017: "Can trusts that parents create for their children be intercepted by the children's spouses?" Law News
17 March 2017: "When legal advice to trustees must be shown to beneficiaries". Law News
13 April 2017: "Does an enduring power of attorney authorise an attorney to act on a trustee's behalf?" Law News
19 May 2017: "Assessing testamentary capacity - an important new development". Law News
16 June 2017: "The law of trusts muddied". Law News
21 July 2017: "Our muddied law of trusts: Part 2". Law News
11 August 2017: "Film your elderly clients to reduce risks of litigation". Law News
8 September 2017: "Unconscionable bargains". Law News
6 October 2017: "Recent developments in trusts and estates". Law News
3 November 2017: "November update on Trusts and Estates". Law News