title: The family trust in New Zealand and the claims of ‘Unwelcome Beneficiaries’

authors: Tappenden, Sue

subjects: Hayton

abstract: In June 2009, at the Transcontinental Trusts conference in Geneva, His Honour Justice David Hayton said that the New Zealand Court of Appeal had got aspects of the law of trusts wrong in its decision in Official Assignee v Wilson [2008] 3 NZLR 45. The Court held that the test for proving a trust was a sham was whether the trustees and settlor had a common intention that the trust was not to be a genuine entitiy. Hayton prefers a more objective approach and looks to the objective effect of a shammer’s conduct and not look for secret dishonest intentions which will hardly ever be revealed. Hayton’s approach would ensure that trust property would be made available to creditors so that they were paid what they were due by declaring the trusts to be shams. Family trusts have become big business in New Zealand and are commonly used to protect a businessman’s assets from creditors. While there is nothing illegal in setting up a family trust, it is my contention that the law pertaining to family trusts in New Zealand has become so far removed from the accepted principles of equity as to demand investigation.
 
This paper explores the origins of equity and compares the modern family trust against the equitable principles which have been developed over hundreds of years, even as far back as Plato’s Greece. The paper links the equity of Ancient Greece to Cicero in Rome, through the early Roman Church to the Chancellors serving English Kings. The law of England leads to the law of modern New Zealand. The paper goes on to examine the way the family trust has been used to defeat the legitimate claims of creditors. I aim to show that the approach taken by the New Zealand Court of Appeal is too narrow and favours the ‘shamming’ settlor at the expense of creditors who have given good consideration in comparison with volunteer beneficiaries. Moreover the family trust has become a mechanism that bears little relationship to recognised equitable principles and should lose the protection accorded to properly constituted trusts.

text: The family trust in New Zealand and the claims of ‘Unwelcome Beneficiaries’ In June 2009, at the Transcontinental Trusts conference in Geneva, His Honour Justice David Hayton said that the New Zealand Court of Appeal had got aspects of the law of trusts wrong in its decision in Official Assignee v Wilson [2008] 3 NZLR 45. The Court held that the test for proving a trust was a sham was whether the trustees and settlor had a common intention that the trust was not to be a genuine entitiy. Hayton prefers a more objective approach and looks to the objective effect of a shammer’s conduct and not look for secret dishonest intentions which will hardly ever be revealed. Hayton’s approach would ensure that trust property would be made available to creditors so that they were paid what they were due by declaring the trusts to be shams. Family trusts have become big business in New Zealand and are commonly used to protect a businessman’s assets from creditors. While there is nothing illegal in setting up a family trust, it is my contention that the law pertaining to family trusts in New Zealand has become so far removed from the accepted principles of equity as to demand investigation.
 
This paper explores the origins of equity and compares the modern family trust against the equitable principles which have been developed over hundreds of years, even as far back as Plato’s Greece. The paper links the equity of Ancient Greece to Cicero in Rome, through the early Roman Church to the Chancellors serving English Kings. The law of England leads to the law of modern New Zealand. The paper goes on to examine the way the family trust has been used to defeat the legitimate claims of creditors. I aim to show that the approach taken by the New Zealand Court of Appeal is too narrow and favours the ‘shamming’ settlor at the expense of creditors who have given good consideration in comparison with volunteer beneficiaries. Moreover the family trust has become a mechanism that bears little relationship to recognised equitable principles and should lose the protection accorded to properly constituted trusts.

year: 2009

title: Policy and law in development of relationship property legislation in New Zealand

authors: Wilson, Margaret

abstract: The central theme of this paper is an analysis of the relationship between policy and law in the context of relationship property. The focus of the paper is on the development of the policy that provided the basis for the Property Relationships Act (PRA). At the outset I acknowledge a personal long term involvement in the campaign for legal recognition of women's right to entitlement of an equal share of the assets accumulated during the marriage or relationship.

text: Policy and law in development of relationship property legislation in New Zealand The central theme of this paper is an analysis of the relationship between policy and law in the context of relationship property. The focus of the paper is on the development of the policy that provided the basis for the Property Relationships Act (PRA). At the outset I acknowledge a personal long term involvement in the campaign for legal recognition of women's right to entitlement of an equal share of the assets accumulated during the marriage or relationship.

year: 2017

title: Creating an environment to inform, build, and sustain a Māori health research workforce

authors: Barrett, Nikki Maree

subjects: Kaupapa Māori

abstract: Ensuring the growth and development of the Māori health research workforce is key to achieving health equity for Māori and enabling positive change for all New Zealanders. The purpose of this study was to identify enablers and barriers to research for Māori staff in a large health organisation, and to understand how research is developed and undertaken. A Kaupapa Māori mixed-methods study was undertaken, using an electronic survey comprised of quantitative data and open-ended responses delivered to all Māori staff at the Waikato District Health Board. Following the survey were 10 one on one interviews. Survey data were analysed using descriptive statistics and open-ended responses summarised. A descriptive thematic analysis was undertaken of the interview data. Each of the interview responses was coded and five themes emerged. Frontline Māori staff affirmed their desire to conduct, design, and undertake health research. Challenges to staff included a lack of information on research opportunities, unclear processes for initiating research, and lack of support and resource. The evidence from participants provides insights into Māori health research priorities, considerations for those wanting to undertake research, and solutions for informing, building, and sustaining the Māori health research workforce.

text: Creating an environment to inform, build, and sustain a Māori health research workforce Ensuring the growth and development of the Māori health research workforce is key to achieving health equity for Māori and enabling positive change for all New Zealanders. The purpose of this study was to identify enablers and barriers to research for Māori staff in a large health organisation, and to understand how research is developed and undertaken. A Kaupapa Māori mixed-methods study was undertaken, using an electronic survey comprised of quantitative data and open-ended responses delivered to all Māori staff at the Waikato District Health Board. Following the survey were 10 one on one interviews. Survey data were analysed using descriptive statistics and open-ended responses summarised. A descriptive thematic analysis was undertaken of the interview data. Each of the interview responses was coded and five themes emerged. Frontline Māori staff affirmed their desire to conduct, design, and undertake health research. Challenges to staff included a lack of information on research opportunities, unclear processes for initiating research, and lack of support and resource. The evidence from participants provides insights into Māori health research priorities, considerations for those wanting to undertake research, and solutions for informing, building, and sustaining the Māori health research workforce.

year: 2023