Description

How to draft them – circumstances around the settlement of a trust

Memoranda of wishes range from pro froma documents prepared by professional advisers and signed by clients as part of the formality of trust settlement, to carefully considered guidance regarding a settlor’s wishes with respect to the long-term management of a trust.

Increasingly memoranda of wishes, how many, and what they say can be an integral aspect of court proceedings. This was highlighted in Vandy v Vandy at [73] as follows:

[73] Mr Fuscic noted that the Memorandum of Wishes to trustees signed by Eric on 28 July 2008 (in which Eric expressed the wish that Verna should be permitted to live in the property for as long as she liked) has been disclosed, but there has been no further disclosure relevant to Eric's wishes as expressed to the trustees. There were five wills made by Eric, and four memoranda setting out his wishes, only one of which has been disclosed. Mr Fuscic asked, "Why hide the rest?"

HIGHLIGHTS
This webinar, which will conclude with a question and answer section, will focus on:

• How to draft a clear and effective memoranda of wishes - what should be included in a memorandum of wishes and what should be left out
• Practical management of memoranda of wishes
• Disclosure considerations
• The implications of up-dating memoranda of wishes
• Who can draft a memorandum of wishes when a trust has a nominee settlor
• How binding a memorandum of wishes is on trustees
• Whether trust terms be varied by a memorandum of wishes
• Whether adhering to a memorandum of wishes is a safe course of action for trustees

OTHER TOPICS COVERED

• The level of capacity is required to draft a memorandum of wishes
• Recent case law on Memoranda of Wishes including the decisions in Addleman v Lambie [2019] NZCA 609; Vandy v Vandy [2019] NZHC 3080; Mackie Law independent Trustee Limited v Chaplow [2017]; NZHC 1570; Chambers v SR Hamilton Corporate Trustee Ltd [2017] NZCA 131

WHY ATTEND
Memoranda of wishes are commonly, but not always pro forma documents that may not fully canvas the settlor’s considered wishes.

This insightful and practical webinar, which will include a work book and precedent memorandum of wishes, will also consider the opportunities a good memorandum of wishes can afford and the dangers of a poorly crafted memoranda of wishes.

ORIGINAL BROADCAST DATE

25 March 2020

LEARNING OUTCOMES

Attendees will learn:

• How to draft a clear and relevant memorandum of wishes
• When and how to review memoranda of wishes
• Capacity considerations
• What other supporting documents trustees can consider
• When and how trustees can comply with the settlor’s intentions as expressed in a memorandum of wishes
• How to decide whether to disclose a memorandum of wishes to the beneficiaries

SUITED TO

This webinar is targeted at all practitioners at all levels but will be of particular interest to practitioners who advise clients who are establishing new trusts or who deal with on-going trust administration (including lawyers, accountants and professional trustees).

PRESENTER

Vicki Ammundsen, Director, Vicki Ammundsen Trust Law