‘…You are just a discretionary beneficiary. You have no rights…’ That’s what a lawyer told a client of ours. This claim reflects how things used to be for many beneficiaries, but it’s never been true, and times have changed. Even discretionary beneficiaries are entitled to have the trust administered properly. Each beneficiary has the right to be considered from time to time. The trustees have to consider whether to help. If your trustees have never contacted you or shown any concern for your welfare, that may be an indication that something is amiss. If you want to discuss your rights, give us a call.

Your father, your mother, or perhaps another relative set up a trust. You had a close relationship with this person before he or she passed away. You were told that you were ‘in the trust’. Then at some point after the funeral new trustees took over. Things changed. You know something isn’t quite right, but you can’t put your finger on it. The new trustees seem to be helping someone else. Meanwhile you feel like you are being ignored. If you are feeling like this, give us a call.

The first thing you will notice about the Declaratory Judgments Act 1908 is its age. This is law has been around now for more than a century and it’s still very useful. A declaratory judgment is a ruling from the court about a legal state of affairs. You might want to know for example whether a trustee was validly appointed. Or about whether a trust deed permitted the trustees to act in a particular way. We all know that trust disputes – like all disputes – get emotive. It’s not uncommon for beneficiaries to think that the trustees have it in for them. But if you say that, you can bet that conversation will get heated. Did the trustee have it in for you? Who knows? The conversation may well end in a stalemate. From a practical perspective it’s often much easier therefore to have a discussion about questions where there is an objectively right answer. That’s where the law comes in. Because often at the heart of even most heated trust disputes there is a serious question about whether the trustees have acted lawfully and in accordance with the documents. These kinds of questions don’t relate the trustees’ intentions. It’s not about whether someone was nice enough. Rather, these are legal questions where there is a right answer. Yes, the human component will still be there. Of course it’s going to be difficult if someone has got the law wrong, but at least a conversation about the law can be more constructive. Seeking a declaration can resolve a dispute, and furthermore, everyone will know the correct answer.

Most trust disputes involve a tug of war between two very basic ideas. Generally speaking, the trustees want more authority. ‘Authority’ is the viewpoint that trustees should be left alone to do what they want. Meanwhile, beneficiaries generally want more accountability. ‘Accountability’ is the idea that trustees should be answerable for their decisions. If you find yourself in a trust dispute, you need to appreciate that the judges have been favouring beneficiaries more than they used to. The clear trend in the cases is to make trustees more accountable, even if that erodes their authority. If you are unsure of your responsibilities as a trustee, or your rights as a beneficiary, give us a call.

You are interested in how a trust has been run. The first thing to do is to look carefully at the information that is already available. We will then look at what information you can and should request from the trustees. Often the documents that would tell you if something is wrong will be initially withheld. Information requests may be resisted on legal grounds; or the trustees may talk about privacy or the cost of responding to your enquiry. However, trustees have to be careful. All their decisions can be reviewed by the courts. Sometimes as we gain further information, a new picture will emerge. A possibility that initially seemed remote can become more and more probable as evidence accumulates. Sometimes new information will raise further questions. Eventually, as information comes to light, your strongest case will emerge. If you have a trust dispute and would like to know about how you can get more information, give us a call.

If you have a dispute, there are two key things you need to appreciate about our court system. Nearly all cases are resolved before any lawyer rises to speak in court. It’s the written presentation that matters most. The court system is designed to avoid surprises. Because of this, most of what is ‘going to be said’ in court must be written down first and filed in advance, usually well before the hearing. If you want a good result in this system, it requires preparation, attention to detail and writing skill. Very often cases will settle on the strength of a powerful written presentation. The key is to be able to get your point across simply, so that it is easily understood. We know that we have got it right when clients say to us, ‘…that’s exactly what I would have said, if I knew how to say it’.

Many people who settled trusts over the last 20 years now question why their trust should be sustained, in the light of greater compliance costs. A simple trust, owing a home, for example, must now register an IRD number for a sale transaction. The paper addresses the relevance of family trusts. Another offers information on how to make a family trust a more robust asset protection. Many people do not know that it is a mistake to move all trustees to Australia and expect no tax effect on New Zealand trust property. So, for people who move to or from New Zealand there is also a brief paper on taxation and residency of New Zealand trusts. For further information contact us or call (03) 477 8080

Here are the three points that come up every time we help a client who wants to resolve a dispute. What is the strength of your case? This has to be your starting point. Bravado is all very well but it is so much easier to hold your ground when you know that your position has substance. What is your strategy? First off, you must have a strategy. This is basically a road map of how you intend to get to the best outcome. Developing a strategy starts with understanding your position. Sometimes a diplomatic solution is possible. Sometimes to protect your position, you must stand up for yourself. Whatever approach you take, it’s important to understand how the system works. You will also need to explore what leverage you might have to influence the conversation. Are we all on the same page? The strategy that we finally settle on has to make sense not only to us, but also to you. Working collaboratively with clients builds trust; and trust builds resilience when it counts.

If you are in a dispute, chances are that you already know what the other party ‘should’ do. Most likely, you feel frustrated because the whole argument seems unnecessary. You wouldn’t be alone in thinking… ‘if only these people would be reasonable, then I wouldn’t have to waste all this money on lawyers’. We understand you feeling like that. The question now is – what do you actually want your lawyer to do? When people say to us that they want a ‘solution’, what they really mean is that they want us to find a way to get another person to change, to think differently ... ’ Invariably the key to getting a successful outcome in a legal dispute is paying attention to ‘leverage’. This concept is important. It’s no good looking at what the other person ‘should’ do. The question is, what are you going to do that will change the conversation. That’s where we come in. How do you go about finding leverage? Well, it can be difficult, but that’s our job! The truth is that there is no magic bullet. There’s no one size fits all. Maybe you need to focus on a legal point that has been overlooked. Maybe you need to do something to help the other party see the strength of your case. Maybe the ball has been in your court too long. In every case it’s a matter of focussing on the issue and developing a concrete strategy. The first thing we will do is listen very, VERY carefully. We need to understand exactly what the issues are for you, and the strengths and vulnerabilities of all sides of the argument. We’ll put our knowledge, experience and research capacity at your disposal. We understand how the court system works, and we’ll help you find a strategy that will give you the best chance of resolving your dispute. The goal is to find realistic ways to change conversations that have stalled.

Many of us know a story about someone buying a house off the plans at a supposedly fixed price……only to have their costs blow out, and ultimately to be left in a battle with the building company. The resulting stress and the financial consequences, can be life changing…and not in a good way. Construction contracts are usually ‘take it or leave it’, where there isn’t a lot of wiggle room – especially when you’re working to a limited budget. This means it’s really important that you understand what the contract says – especially in terms of where there may be potential for the cost of the build to increase. We can help you to properly understand exactly what it is that you are signing up to……before you sign up to it. At Lucas and Lucas we can identify and help you to understand, where the terms of the contract may leave you exposed, and provide advice on what you can do to limit (or eliminate) that exposure. Thinking of building a new house? Give us a call.

We have all seen or heard about letters from lawyers like this: …My client demands this, that and the next thing. Right now, with a cherry on top… It’s what we call a wish list. These letters are easy to draw up, sometimes even without thinking. But you know what the catch is. It’s obvious. By itself, a wish list won’t make anything happen . That’s because this sort of letter is all about what you want. Now, of course we do care about what you want. However, if you are really serious about solving your problem, you will need to focus on what the other side hopes for, dreams about, and (yes) even what they might not want to happen. That’s what we call leverage. It’s a concept that is so important. Because what matters most for you is what will motivate the other side. It isn’t always easy to find, but happily for you it is usually very easy to recognise. Finding leverage is part of our job. Don’t be content with a mere wish list. You’ll feel the difference when you see a letter that is drawn up to motivate the other side. Give us a call.

As numerous as trusts are in NZ, changes over the past 10-15 years in regards to case law, legislation and government practice (particularly with regards to taxation) have caused trusts to become a bit of a question mark in many people’s minds. Are there still any benefits to setting up a trust? Yes. If you are in business, a trust can protect the family home from commercial creditors or litigious customers. Subject to a number of ifs, buts and maybes, a trust can still be a useful vehicle for intergenerational or otherwise long-term asset management. And – subject to even more ifs, buts and maybes – a trust can still be a useful vehicle for protecting assets from relationship property claims. Of course, the potential effectiveness of a trust is very much dependent upon the trust being properly administered. It’s not that trusts are no longer of any use or relevance. Rather, it’s that the question of whether or not to employ a trust, is more complicated than it used to be. We can help you to answer that question.