24 March 2015

Family Trust: Potter v. Duffy

Setting up a family trust often seems a good idea at the time, but unscrambling these arrangements can prove very difficult when spouses fall out as a Tauranga couple found.
The High Court was told Mark Duffy and Teri Potter separated in 2007 after living together for 28 years.  They had transferred their Pyes Pa kiwifruit orchard into a family trust in 2002.  Each of them are a trustee of the trust together with an independent trust company : Le Pine Trustees Ltd.  Ms Potter wants her money; Mr Duffy is in no mood to wind up the trust.
Ms Potter went to court to have the Trust assets sold and the net proceeds of sale divided between them.
Associate Judge Bell said trust law applies; not the Property (Relationships) Act.  The orchard is owned by a trust.  Trust law does not deal easily with the circumstances of their trust.
Their trust was described as a conventional discretionary family trust.  The final beneficiaries are their two children, both now in their twenties.  The discretionary beneficiaries are Mr Duffy, Ms Potter and the two children.
The Trustee Act does not help.  Judge Bell said the Act can be used to split off trust assets where all trustees are in agreement but lack power in the trust deed to complete the transaction.  Here the trustees are not in agreement.  The Act could not be used. 
Ms Potter asked the court to order a division of assets under rules in Part six of the Property Law Act: rules which enable division of property amongst co-owners.  But the trustees in this case are not co-owners; they are collectively owners of the trust assets.  A court-ordered division of the trust assets would still leave the three trustees as collective owners of all the trust assets and obliged to confer and agree unanimously on any sale, said Judge Bell.
Terms of their trust deed enables the trustees to agree to resettlement of the trust: new trusts being set up and assets of the existing trust split between two new trusts.  But this procedure requires consent of all the trustees.
Judeg Bell said the court could assist with division of assets after the trustees had agreed on a resettlement, but in the interim the court could not help.
As an alternative, Ms Potter asked the court to remove Mr Duffy as a trustee.  If this were to happen, she said she would resign as a trustee leaving Le Pine Trustees as the sole trustee.  A later court hearing is needed to pursue this possibility.
Potter v. Duffy – High Court (24.03.15)

15.022