This blog examines the powers that settlors and protectors may wish to retain over assets vested in a trust. However, as most trust professionals are aware, the extensive transfer of powers to a settlor or a protector has a downside. To give substance to a trust, it is essential that the trustee is able to perform its fiduciary duties, honestly and in good faith for the benefit of the beneficiaries.
Pearse Trust Blog
Case Of Briggs & Ors v Gleeds
This blog highlights the importance of ensuring deeds are validly executed. The recent case of Briggs & Ors v Gleeds (Head Office) & Ors  EWHC 1178 (Ch) (15 April 2014) deals with the consequences of the defective execution of 30 salary pension scheme documents over a period of almost 20 years.
This blog looks at the recent Bermuda case Re A Trust (2013) SC (Bda) 16 Civ. In this case, the Supreme Court of Bermuda considered the validity and effect of an ‘information control clause’ which provided the trust protector with the right to prevent disclosure of trust information by the trustee to beneficiaries.
This blog discusses the rule in Saunders v Vautier  EWHC Ch J82 (05 June 1841) as set down by the England and Wales High Court in 1841. The rule is very much in force today and remains useful for trustees and beneficiaries in modern times.
The New Zealand Law Commission ("the Commission") has reviewed trust law generally, and in particular, the much outdated Trustee Act 1956.
This blog post highlights the importance of appointing an independent trustee as illustrated by a recent England & Wales High Court action. The case involved a discretionary trust where the settlor had appointed several family members as trustees. This later led to an acrimonious court battle. Whilst the court put to rest the legal dispute, no doubt the same cannot be said for the family feud which arose as a result of the family members having being appointed as co-trustees of the family trust.
One of the toughest decisions that any family business may face is whether the business will be passed on to family members or sold by the retiring generation. This decision not only threatens the continuity of the business, but can threaten the family unit itself and often leads to costly litigious disputes.
As we are aware, a trust is created when a settlor transfers assets to a trustee to hold for the benefit of one or more beneficiaries. The term ‘trust’ simply describes the fiduciary arrangement or relationship between those parties. It is not a legal entity, and does not have juristic personality. It is therefore incapable of holding assets, entering contracts or undertaking any other legal formalities in its own name. Indeed, as Adderly J commented in Tenesheles Trust & ors v BDO Mann Judd (Supreme Court of the Bahamas, 16 November 2009), ‘it is trite law that a trust lacks legal capacity…a trust is an arrangement, not an entity’.
In a trust arrangement, the appointed trustee is the person or entity with capacity to undertake these legal formalities. In assuming this function, the trustee acts as representative of the trust. The manner in which the trustee exercises this function is governed by the terms of the trust agreement and relevant local trust law.
Holding Of Assets
In our previous blog post we examined the case Prest (Appellant) v Petrodel Resources Limited & Others (Respondents). This case involved a claim for financial remedies following an acrimonious divorce between oil tycoon Michael Prest and his former wife, Yasmin Prest.
Trusts may be set aside by the courts (“voided”) for a variety of reasons. In this blog we will be looking at four legal doctrines whereby the courts may set aside a trust. These doctrines apply in common lawjurisdictions: