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Cradle to Grave Conference 2018

Presenters

Anthony Grant Barrister — Radcliffe Chambers

Lynda Kearns Barrister — Bastion Chambers

Vanessa Bruton QC

Mary Joy Simpson Partner — Hesketh Henry

Andrea Challis Partner — McElroys Vicki Ammundsen Director — Vicki Ammundsen Trust Law Limited Theresa Donnelly Ministry of Social Development and Oranga Tamariki Shared Legal Services Brian Carter Barrister — Bastion Chambers

Chris Kelly Consultant — Greg Kelly Law Ltd Greg Kelly Principal — Greg Kelly Law Ltd Denham Martin Principal — Denham Martin Tax Law Juliet Moses Partner — TGT Legal

Chair

Bill Patterson Partner — Patterson Hopkins

Cradle to Grave Conference 2018 © Copyright owned by the authors with a licence to Auckland District Law Society Incorporated 2018


CAUTION TO READER: No responsibility or liability is accepted by the Auckland District Law Society Inc for the accuracy of any statement, opinion or advice contained in this publication. The views and opinions expressed in this publication are those of the individual authors, and not necessarily those of the Auckland District Law Society Inc. While all reasonable care has been taken by the authors and the Auckland District Law Society Inc in presenting this publication, the contents are intended to provide general information in summary form only, and do not constitute legal or financial advice and should not be relied on as such. Readers should rely upon their own enquiries or research before making any decisions or taking any action based upon information contained in this publication. Specialist advice should be sought in particular matters.

Cradle to Grave Conference 2018 Š Copyright owned by the authors with a licence to Auckland District Law Society Incorporated 2018


C2G-2018-Programme-V6-trims.pdf

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8/03/18

6:24 PM

2018 Cradle to Grave Conference Programme 8.50 – 9.00am

Opening remarks from the Chair Bill Patterson, Partner, Patterson Hopkins

1.05 – 1.35pm

Section 182 of the Family Proceedings Act 1980 has become an important weapon in the arsenal of family lawyers. This session will provide a succinct overview of the provisions of this section and an analysis of recent case law to demonstrate what the views of the New Zealand courts about the applicability of the section currently are. It will also look into the future and consider the Law Commission’s approach to the section and its initial recommendations. Brian Carter, Barrister, Bastion Chambers 1.35 – 2.05pm

9.00 – 9.40am

Pugachev and its Relevance to Trusts in NZ

In the recent case of Pugachev, an English Court found five NZ Trusts were either invalid or sham, making it a case of major significance for Trust practitioners. This session will explore why the Trusts were found to be invalid and shams and how to ensure, in light of the Court’s findings, that Trusts will be upheld as valid. Consideration will also be given as to how to avoid Trusts being treated as relationship property after Clayton. Anthony Grant, Barrister, Radcliffe Chambers 9.40 – 10.20am

Troubled Trustees – Navigating Stormy Waters with Court Assistance

Same old story. Siblings who don’t get on, or friction between the settlor’s widow and the children of his first marriage. A number of recent cases show the Courts‘ increasing willingness to assist troubled trustees by granting their applications for directions and payment of reasonable costs from the trust estate. In so doing the Courts will have regard to the purposes of the trust, memoranda of wishes, and hold trustees to high standards. The session will identify what practitioners need to know in respect of the Courts’ approach, lessons to learn, and provide practice pointers. Vanessa Bruton QC C

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10.20 – 10.30am

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Q&A (related to the preceding topics) MORNING TEA (20 minutes)

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10.50 – 11.20am

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This session on professional liability claims will focus on issues that may arise in relation to insurance policies following notification of a claim. This will include the appointment of defence counsel and the relationship between counsel, the broker, insurer and insured. Considering recent case law, it will also look at the difficulties that may arise for lawyers facing professional liability claims who act both as legal adviser and trustee and the implications of being sued in either capacity. Andrea Challis, Partner, McElroys

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11.20 – 11.50am

Capacity

Public Law Pot Pourri – Residential Care and the Rest

With a new government, there are more Public Law issues for you and your clients to consider than ever before. This session will address those areas most relevant to practitioners, including developments in the residential care subsidy space, the recent appeal, problems with “early inheritances” and loans from mum and dad. It will explore what might be expected beyond the first hundred days and discuss how you might have fruitful engagement with a government agency. Theresa Donnelly, Ministry of Social Development and Oranga Tamariki Shared Legal Services 12.20 – 12.30pm

Co-owners’ Rights to Occupation Rent: Rights under Legislation and in Equity

The rights of co-owners to occupation rent under the Property Law Act 2007, the Property (Relationships) Act 1976 and in equity raise some interesting questions. This session, looking at recent case law, will consider whether the legislation does in fact provide for a spouse to claim occupational rent following separation. It will also look at whether the situation is different or the same under the Trustee Act 1956 and how it will be affected by changes to the PRA and trust law generally. Lynda Kearns, Barrister, Bastion Chambers 2.05 – 2.35pm

Enduring Powers of Attorney: The Forms and Other Matters

Although the new Enduring Power of Attorney forms have been in place for some time, they may present challenges for lawyers and their clients. This session, using practical drafting examples, will provide insights into how the forms can best be crafted to suit a particular client’s needs, and the extent to which they may be amended. It will also provide a focus on other aspects of EPAs including ways to assist the attorney appointed to understand their role, a review of recent case law where EPAs have been misused, and what the lawyer’s role is when the attorney ‘takes over’. Mary Joy Simpson, Partner, Hesketh Henry 2.35 – 2.45pm

Q&A (related to the preceding topics)

2.45 – 3.00pm

DNA Testing for Family Lawyers Dr Amanda Dixon-McIver, Senior Scientist, DNA Diagnostics

Professional Liability Claims

The capacity of a person is fundamental to the legality of their decisions. Exploring capacity in the context of wills, asset and estate planning, and trusts, this session will look at the levels of capacity relevant to a variety of common transactions and appointments as well as the solicitor’s risk when identifying capacity issues and when to instruct medical specialists. It will also provide guidance on the exercise of appointer powers under an enduring power of attorney and the issues associated with the removal of incapacitated trustees. Vicki Ammundsen, Director, Vicki Ammundsen Trust Law Limited 11.50am – 12.20pm

Section 182 of the Family Proceedings Act 1980: The Present and the (Possible) Future

Q&A (related to the preceding topics) LUNCH (35 minutes)

AFTERNOON TEA (15 minutes) 3.15 – 3.55pm

The Great Balancing Act – Planning Ahead with Blended Families

Advising clients in blended families on property matters can often be problematic for lawyers. Options exist but choosing the best one may not always be clear. The Property (Relationships) Act 1976 is one but is it more of a hindrance than a help? Can trusts provide an answer? How can Section 21 Agreements be kept relevant? Do life interest wills really work? And is it possible to reconcile the needs and wishes of adult children and those under age? This session will seek to provide some of the answers and make the family lawyer’s task less onerous. Chris Kelly, Consultant, Greg Kelly Law Ltd Greg Kelly, Principal, Greg Kelly Law Ltd 3.55 – 4.25pm

Current Tax Considerations for Trust Lawyers

This session will focus on current taxation issues impacting on trusts law and administration. It will include a discussion of IR’s revised Interpretation Statement on the Taxation of Trusts and will consider new legislative initiatives for Base Erosion and Profit Shifting that tighten existing rules applying to foreign trusts as well as other IR statements and cases of relevance to trust practice. Denham Martin, Principal, Denham Martin Tax Law 4.25 – 4.55pm

Winding-up without Getting Wound Up

Trust windings-up are occurring more frequently. Whatever the reason for a winding-up, it can involve complex issues that trustees, acting in accordance with their duties and best practice, should be mindful of. This session will look at the various reasons why a trust may be wound-up and the different ways that this can be achieved. In addition, it will highlight the principal issues to bear in mind including the question of indemnity, and address some of the practicalities that need to be dealt with. Juliet Moses, Partner, TGT Legal 4.55 – 5.00pm

Close of Proceedings Bill Patterson, Partner, Patterson Hopkins


C2G-2018-Programme-V6-trims.pdf

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8/03/18

6:24 PM

Presenter Bios Bill Patterson

Lynda Kearns

Partner, Patterson Hopkins (Chair)

Barrister, Bastion Chambers

Bill Patterson LLB, LLM (Hons) TEP is a managing partner at Patterson Hopkins, a boutique Auckland law firm. He practises in the areas of property, trust and commercial law. He has a wealth of expertise in estate matters, wills and trusts, family protection and other family property arrangements. Bill is a member of the international lawyers’ network, AEA, and Convenor of the ADLS Trust Law Committee. He was made a distinguished member of ADLS for his work in these fields and his book, Law of Family Protection and Testamentary Promises in New Zealand, is in its fourth edition.

Anthony Grant Barrister, Radcliffe Chambers Anthony Grant is an Auckland barrister who acts mainly in disputes involving the law of Trusts, Wills, claims under the Family Protection Act, the Law Reform (Testamentary Promises) Act, claims of resulting trusts, constructive trusts, and other claims in Equity. He has written more than 130 articles on these topics and delivered many papers on them at conferences and seminars.

Vanessa Bruton QC

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Vanessa is an Auckland litigator, practising almost exclusively in trust and estate disputes. She was lead counsel for the successful plaintiffs in Thurston v Thurston and Green v Green, and acted for the successful trustees in Thompson v Thompson. She is a member of STEP and the ADLS Trust Law Committee and regularly presents for NZLS and ADLS. She went to the independent bar in 2014 and took silk in 2016.

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Andrea Challis Partner, McElroys Andrea has been a partner at McElroys since 2000, and in practice for 25 years. She is regularly instructed by insurers to represent their insured clients in many different fields, including professional indemnity work. In that role, Andrea has defended lawyers and accountants for alleged breaches of duty both in their role as advisers to trusts, and as professional trustees.

Vicki Ammundsen Director, Vicki Ammundsen Trust Law Limited Vicki is the director of Vicki Ammundsen Trust Law. She is the author of a number of texts including Taxation of Trusts, Trustee Liability, The Trustee’s Handbook, the Residential Care Subsidies Handbook and A Practical Guide to Legal issues for Older People (CCH, 2018), as well as the blog “Matters of Trust”. Vicki’s approach to law is practical and she advises on all areas of trust law and related matters.

Lynda has been a specialist in all aspects of family law for many years. Her practice primarily relates to cases involving relationship and trust property as well as estate matters, including family protection claims. She advises on custody, access, Hague Convention cases and maintenance, including spousal maintenance. She has particular expertise in the area of child support. She has senior counsel for the child status and is routinely appointed to act for children, as counsel to assist the Court or as amicus. She has presented numerous seminars on a variety of relationship property- and trust-related issues and matters relating to children. She has been appointed to numerous Law Society committees and previously chaired the ADLS Family Law Committee.

Mary Joy Simpson Partner, Hesketh Henry A specialist in trust and estate planning law, Mary Joy regularly reviews and provides advice on personal estate plans. As part of her practice, Mary Joy is involved in both the drafting of enduring powers of attorney and their implementation when the client no longer has mental capacity to manage their personal affairs. Mary Joy is passionate about ensuring attorneys appreciate the powers and duties their fiduciary role entails. Mary Joy has previously presented for ADLS on enduring powers of attorney and trust drafting.

Chris Kelly Consultant, Greg Kelly Law Ltd Chris Kelly has over 35 years’ experience as a lawyer specialising in wills, trusts, estates and elder law. Chris is co-author of two leading legal texts: Garrow and Kelly Law of Trusts and Trustees (6th and 7th editions) and Dobbie’s Probate and Administration Practice (5th and 6th editions). In addition to other publications, Chris has presented more than a dozen papers at legal conferences and has chaired LexisNexis Elder Law Conferences. Chris is a member of the Society of Trust and Estate Practitioners (STEP) and gained an LLM with a thesis on the accountability of trustees.

Greg Kelly Principal, Greg Kelly Law Ltd Greg Kelly is a recognised national authority on wills, estates and trust law. Greg co-authored Garrow and Kelly Law of Trusts and Trustees (6th and 7th editions) and Dobbie’s Probate and Administration Practice (5th and 6th editions). He wrote the Probate and Administration section of McGechan on Procedure, he contributes to LexisNexis Law of Trusts, and is a member of the Wills and Trusts Technical Committee of the NZLS Property Law Section. Greg assisted the Law Commission in its 2013 review of the law of trusts and was also a member of the Trusts Reference Group which advised the Minister on the proposed Act.

Denham Martin Theresa Donnelly Ministry of Social Development and Oranga Tamariki Shared Legal Services Theresa is a Senior Solicitor and a specialist in Social Security law. She has worked in several private practice firms, specialising in litigation and a number of departments within the public sector as in-house counsel. She has presented webinars and seminars for a variety of professional groups, including ADLS, NZLS, CCH and NZICA.

Principal, Denham Martin Tax Law Denham is a lawyer specialising in advising on all aspects of tax law. He has been a partner with law and accounting firms in New Zealand and Australia and is currently the principal of his own tax law practice, Denham Martin Tax Law. Denham has published extensively on tax matters, is involved with tax disputes and litigation, and is a recognised expert on many areas of domestic and international tax law.

Juliet Moses Brian Carter Barrister, Bastion Chambers Brian is a barrister practising in the family law arena, mainly in relationship property, trust, estate and COCA litigation. He is a former partner at McVeagh Fleming, has lectured in family property law at Auckland University (2002-2004) and is a trained mediator (LEADR New Zealand and CEDR United Kingdom). Brian is a past contributor to Brookers Family Property. He is a regular contributor to CPD in the legal profession through presenting and chairing seminars and conferences and his long-standing membership of the ADLS CPD Committee.

Partner, TGT Legal Juliet is a partner at TGT Legal, a boutique trust and private client law firm based in Auckland. She specialises in trusts, personal asset planning and superannuation and is a regular presenter of seminars and author of articles on issues arising in those areas. She has spoken at several ADLS (including previous Cradle to Grave) conferences, NZLS conferences, and at STEP (Society of Trust and Estate Practitioners) and NZICA events. Juliet is the chair of the STEP education committee and also published a chapter in the CCH 2011 edition of the Master Trusts Guide on the Termination and Insolvency of Trusts.


Non-Trusts and Sham Trusts: The Pugachev Case and its Relevance to Trusts in New Zealand Anthony Grant Barrister — Radcliffe Chambers Contents Pugachev — Some Facts ............................................................................................................... 2 The Five Trusts Were Held to be Invalid ........................................................................................ 3 The Judge’s Assessment of the Intentions of the Trustees ............................................................. 4 Some Observations About the Finding of Sham............................................................................. 6 Similarities with the Clayton Case ................................................................................................. 6 Some Lessons from Pugachev....................................................................................................... 8 Asset Protection Trusts .............................................................................................................. 10 Does New Zealand have an Aberrant Rule about “Effective Control”? ......................................... 11 The Validity of a Clause that Automatically Transferred Powers from One Person to Another, to Avoid Compliance with Court Orders ............................................................................ 11 When Can a Beneficiary Self-Benefit? ......................................................................................... 12 Identifying the True “Settlor” of a Trust ...................................................................................... 13 The Importance of Memoranda of Wishes .................................................................................. 14

Cradle to Grave Conference 2018 © Copyright owned by the authors with a licence to Auckland District Law Society Incorporated 2018

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Cradle to Grave 2018  
Cradle to Grave 2018