Trusts and Estate Litigation

Options for Enforcing an Application for Probate

Help – my mum's executor won't apply for probate! When a person dies leaving behind a Will, the executor of that Will should apply to the Court for probate so that the deceased's wishes can be given effect to. What if the executor refuses to do so? The Administration Act and the Public Trust Act give us tools to overcome such a situation, each slightly different, depending on what you require in your situation.
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A Time to Reflect on Estate/Trust Matters

The current 'lockdown' is unprecedented. In times like these your first priority is to ensure you take care of yourselves, friends and family. However, while it is important to protect those close to you, you should also give consideration to the protection of your assets. Accordingly, it may be an opportune time to review your current estate planning to ensure everything is 'as you would like' and, if you have a trust, to make sure that it aligns with the provisions of the Trusts Act 2019 ("the Act") which was enacted this year but comes into force at the beginning of 2021.
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The Family Trust and the ‘Independent Trustee’

A trust exists to hold assets for a certain purpose. For an ‘ordinary’ family trust, commonly conceptualised as a ‘mum and dad’ trust, the ‘mum and dad’ settlors ordinarily transfer their main home to trustees to hold that property for the benefit of their immediate family group. In this scenario it is common for ‘mum and dad’ to be appointed as trustees. They are additionally named as discretionary beneficiaries to ensure they may benefit from the trust assets throughout their lifetimes as well.
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The New Trusts Act and How it Will Affect You as a Trustee

As you may be aware, the Trusts Act ("Act") has received Royal Assent and will come into effect on 30 January 2021. Amongst other things the Act codifies the duties of trustees and requires greater transparency with beneficiaries. It will affect your current trust arrangements. You should consider reviewing, updating and making structural changes to your Trust if necessary, in order to future proof your Trust. The following is a summary of the key changes and how they may affect you.
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Effective Trust Management and Asset Protection

"Trust busting" is the term given to an attempt made to penetrate a Trust structure and have assets held by the Trust declared by the Courts to be owned personally by an individual. The implication of Trust assets being found to be owned personally is that these assets then become part of an individual'snet worth and are an available "property pool" to former spouses/partners or creditors with valid claims against the individual.
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