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How should trustees use a memorandum of wishes?

If you are a trustee, your decision making can be guided by a memorandum of wishes.

This is a document in which the settlor of a trust recommends or requests that trust property be handled in a particular way.

It is a significant document that you (and other trustees) must consider, but it cannot override the terms of the trust deed.*

For example, if under the terms of a trust deed, a particular transaction would be an unauthorised distribution of the trust’s assets, then the existence of a memorandum of wishes requesting the transaction will not protect the trustees.

The ultimate frame of reference for trustees is the trust deed.

If they stray outside its terms, they commit a breach of trust. The fact that they are following the settlors wishes is no defence.

* McGuire v Earl [2020] NZHC 3083

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