04 September 2015

Family Trust: Lee v. Torrey

Trust and confidence placed in her close friend by a Northland woman when setting up a family trust proved misplaced when her erstwhile friend Donna Marie Torrey acting as trustee later grabbed the lion’s share of the trust assets.  The High Court ordered $106,000 be repaid to the family trust.
The High Court was told Pam Lee set up the PD Lee Trust in 2005, naming close friend Ms Torrey as one of the trustees.  After marrying, Ms Torrey is now known as Ms Folwell.  Named as discretionary beneficiaries are one of Ms Lee’s two sons, Matthew, and two of her closest friends, one being Ms Folwell.  Ms Lee died in June 2007, leaving a modest estate.  Her Ruawai home had been owned by the PD Lee Trust.  It was sold about six months before her death, leaving over $165,000 sitting in the Trust’s bank account accruing interest at about $860 a month.
While Ms Folwell was named as a trustee when the Trust was set up, she in fact resigned from the position about 18 months before Ms Lee died.  Her motives for resigning were not clear, but in a letter to the Trust’s solicitors she said she wanted to be removed “ as [she] wasn’t getting nothing out of it at all”.  A different attitude was apparent after Ms Lee died.  The will recorded that Ms Folwell inherited Ms Lee’s power to appoint trustees to the PD Lee Trust.  Within six months, Ms Folwell had herself and her husband William Farmer Folwell installed as trustees.  One month later, nearly all the money was gone from the Trust’s bank account.
Following legal action by son Matthew, Ms Folwell and her husband were ordered to repay $106,553 to the Trust together with interest that would have accrued on the money if not taken.  The Public Trust was appointed trustee in their place.
Justice Faire said the PD Lee Trust is a trust with discretionary beneficiaries.  There are no directions in the trust document as to how the trustees are to exercise their discretion in favour of one beneficiary or another.  There was no evidence to indicate that Ms Lee intended Ms Folwell to benefit more favourably than the other two named discretionary beneficiaries.  Trustees must exercise their duties honestly and in good faith, he said.
Justice Faire said this was not a case of trustees being honest but careless; the trustees displayed no moral concern for other beneficiaries of the Trust.  They had acted in bad faith, he said.  They pocketed half the Trust’s assets for themselves.  Some payments were made direct to Ms Folwell’s husband even though he is not a named beneficiary of the Trust.  A total of $26,100 was lost in an advance-fee fraud when Trust money was sent to the United Kingdom.  Ms Folwell sent the money off-shore responding to an email telling her she was entitled to an inheritance from some distant relative of her previous husband.  There was no inheritance.
Justice Faire said Ms Folwell and her husband did not keep proper accounts as trustees, or file tax returns for the Trust.  They did not keep a record of the distributions thay made to themselves or how that money was ultimately spent.
Lee v. Torrey – High Court (4.09.15)

15.102