Description

Capacity in the context of settling trusts, memoranda of wishes and exercise of appointor powers

Testamentary capacity is largely well understood. However, the requisite capacity to settle a trust, draft or update (or revoke) a memorandum of wishes or to exercise appointor powers is less clear cut. In the context of trusts it may also be appropriate to consider capacity through not just the lens of a comparator with testamentary capacity or capacity in a medical context, also capacity in a broader construct as the capacity to functionally act as a trustee or exercise powers that touch on a trust. As observed by the Supreme Court in Mason v Triezenberg [2022] NZSC 99:

“… it was entirely reasonable for the Judge to conclude that the trusts would not function effectively with Mr Mason’s continued involvement, and no good reason existed for the Judge to remove the respondents as trustees, given Mr Mason was the primary source of the dysfunction …

This webinar will explore the interplay of functional decision making, exercise of powers and capacity in the context of trusts.

HIGHLIGHTS

The webinar, which will conclude with a question and answer section, will also consider capacity and functionality (in a trust context) by refence to case law and the relevant legislation.

Topics covered will include:

• The requirements of a valid trust
• Relevant tests of capacity
• Capacity to settle a trust
• The level of capacity to make an inter vivos gift
• Exercising powers to appointing and remove beneficiaries
• Exercising powers to appointing and remove trustees
• Making, updating and revoking memoranda of wishes
• Exercise of wider trust related powers by an attorney under an enduring power of attorney, and
• Steps to take to address concerns regarding capacity

Cases considered include:

• Green v Green [2015] NZHC 1218; [2016] NZCA 486
• Grand View Private Trust v Wang [2022] UKPC 47
• GB Trustees Limited v Stock [2021] JRC 048
• Mason v Triezenberg [2022] NZSC 99 the
• Re Estate Joyce [2014] EWHC 3926 (Ch)
• Re Beaney [19778] 1 WLR 770
• Simon v Byford [2014] EWCA Civ 280

WHY ATTEND

Capacity is a commonly considered aspect of the ability to make a will or act as a trustee but is commonly overlooked in the wider exercise of trust related decisions, rights and powers. This webinar will explore the relevant considerations in a practical context and will set out questions that will assist to formulate relevant considerations and courses of action.

ORIGINAL BROADCAST DATE

22 March 2023

LEARNING OUTCOMES

Attendees will learn:

• matters to take into consideration when considering capacity for trust purposes
• how to address capacity with settlors and trustees
• appropriate record keeping, and
• capacity warning signs

SUITED TO

This webinar is targeted at all practitioners at all levels but will be of particular interest to practitioners who advise settlors, trustees or beneficiaries.

PRESENTER

Vicki Ammundsen, Director, Vicki Ammundsen Trust Law Limited.