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Mid Mountains Legal, 11 Werona Street, Lawson (2026)

02/11/2025

Can a buyer or seller cancel a contract for sale? (NSW)

When entering into a contract to buy a property, both the vendor and the purchaser should understand and be comfortable with the contract.

Backing out of a contract can be complex because the circumstances in which either party can pull out are limited. There are three main categories of such circumstances:
1. failure to attach a required document to the contract
2. failure to include a prescribed term in the contract; and
3. breach of an implied warranty by the vendor.

Following are some of the circumstances in which a party to a contract for residential property may be able to back out of a contract after exchange.

Can a vendor cancel a contract for sale?

There aren’t many ways a vendor can cancel a contract following exchange and they largely depend on the purchaser. Examples include if the purchaser:
1. makes a claim for compensation under the contract after exchange exceeding 5% of the price; or
2. breaches an essential part of the contract.

A vendor’s right of recission may be specifically included in the contract. A right of rescission is when a contract contains a clause giving a party the right to rescind should a specified event occur or fail to occur. For example, a subject to finance clause may provide that either party can rescind if the purchaser’s finance is not approved by a specified date.

Other grounds to terminate the contract include:
1. purchaser failing to pay the deposit for the property; or
2. having agreed to pay the vendor the deposit via instalments, the purchaser fails to do so.

For example, if the contract specifies that 5% of the deposit is paid on exchange and the remaining 5% two weeks after exchange and the purchaser fails to pay the second instalment on time, the vendor may be able to terminate the contract and keep the initial payment.

The contract may also provide that the vendor can recover the unpaid portion of the deposit.

Alternatively, if the vendor cannot on reasonable grounds comply with a purchaser’s requisition, they may also have grounds for backing out of the contract.

Can a purchaser pull out after exchange of contracts?

After contracts have been exchanged, and the cooling off period has expired, in certain circumstances the purchaser can rescind the contract.

When you sell a property in NSW, your contract must contain vendor disclosure documents, including title searches, drainage diagrams and a council planning certificate. The planning certificate contains a lot of information including whether the property is in a heritage zone or is bush fire prone.

The vendor must include all the required documents in the contract to deny the purchaser the right to rescind the contract. If any vendor disclosure documents are missing, the purchaser may walk away and get their deposit back. If the purchaser cancels the contract, it becomes null and void and the purchaser has no further obligations to the vendor.

For example, different water catchments areas have different drainage diagrams. The correct documents must be obtained and attached to the contract.

If a purchaser wishes to rescind on the grounds that a required document is missing, they must exercise this right within 14 days of the contract date.

Only one of these documents needs to be missing to allow the purchaser to serve a notice of recission on the vendor.

Here to Help

When acting for a vendor, we check the contract to ensure that all required documents are attached. We also obtain detailed information regarding the property and the sale to ensure that the contract protects the vendor.

Contact us if you are a purchaser who is looking for a way out of a purchase. We will examine the contract to see if any documents are missing.

25/10/2025

Retail Leases in NSW

Retail leases are a specific type of commercial lease that applies to premises used for retail businesses, such as cafes, shops, or service-based operations. In NSW, retail leases are governed by the Retail Leases Act 1994 (NSW) [the Act], which gives tenants additional protections in comparison with standard commercial leases.

What is a retail lease?

A retail lease is a legally binding agreement between a landlord and a tenant for premises used wholly or predominantly for retail purposes. Retail businesses include:
• restaurants or cafes;
• beauty salons or hairdressers;
• pharmacies; and
• clothing stores.

The Act applies to most retail leases where the:
1. premises are under 1,000 square metres in size; and
2. lease term is longer than six months (or if the lease term is less than six months but is renewable beyond six months). There is are no minimum lease term requirements.

Features of retail leases

Retail leases are more regulated than other types of commercial leases. Key features include:

Disclosure statements:

Landlords must provide tenants with a disclosure statement outlining key lease terms (including outgoings, rent, and obligations) at least 7 days before the lease is signed.
Rent reviews:

The lease must specify how rent increases are calculated, whether through market reviews, fixed percentages, or CPI adjustments.

Outgoings:

The lease must specify all outgoings the tenant is responsible for, such as strata levies, insurance, and council rates.

Security of tenure:

Tenants may have the option to renew the lease when it expires, giving their business continuity.

“Make good” obligations:

The lease may require that, at the end of the lease, tenants must restore the premises to its original condition.

The Retail Leasing Process

Finding the right premises

Search for a retail space that meets your business needs in terms of location, size, and budget.

Disclosure statement

The landlord must give the tenant a disclosure statement outlining all key terms of the lease. The tenant should carefully review this document.

Lease negotiation

Negotiate and discuss terms, such as lease duration, rent, outgoings, and fit-out contributions.

Seek legal advice

Seek legal advice to understand your rights and obligations.

Sign the lease

Both parties sign the lease. The tenant generally pays the first month’s rent and a security deposit.

Register the lease

Retail leases longer than 3 years must be registered with NSW Land Registry Services. Registration makes the lease enforceable and protects your interests.

Timeframe

Lease preparation: Negotiating and finalising a retail lease can take 2–6 weeks or longer, depending on it’s complexity.

Takeaways

Retail leases in NSW are governed by strict regulations to protect both landlords and tenants. Understanding the basics, reviewing disclosure statements carefully, and seeking legal advice can help you navigate the leasing process confidently.

Here to Help

If you are entering into a retail lease, contact us for legal advice and representation.

18/10/2025

Shinohara bids ‘Sayonara’ to addbacks

Until recently, Courts were permitted to ‘add back’ on a notional basis assets contributed by either party that had dissipated by the time of the settlement when determining a Family Law property application.

However, the 2025 decision in Shinohara & Shinohara (No 2) by the Full Court of the Federal Circuit and Family Court of Australia has made it clear that, following amendments introduced under the Family Law Amendment Act 2024, addbacks are out.

The story behind the case

This appeal dealt with parenting and property matters after a six year marriage. The total asset pool, excluding addbacks, was just over $600,000. The parties agreed that superannuation would be considered separately.

Grounds for the appeal:

A significant issue at trial was the inclusion of “addbacks,” particularly regarding the wife’s contributions (pre-marital funds and an inheritance) which were no longer part of the asset pool. the Trial Judge did not consider these addbacks. Following the assumption that no addbacks would be included, no submissions were presented by the wife regarding the impact of the contributions on the current asset pool.

The three Judges of the Full Court found that the Trial Judge had failed to ensure procedural fairness and consequently they re – exercised the discretion. The appeal was heard following amendments to the Family Law Act 1975 (“the Act”) brought about by the Family Law Amendment Act 2024, so when reassessing the division of property the Full Court used the revised framework.

The decision:
Section 79(3)(a)(i) of the Act now expressly limits the pool of divisible property to that which presently exists. The Appeal Court held that “Statutory interpretation focuses on the plain and ordinary meaning of the words in the section. The text of s 79(3)(a)(i) is clear. Only the existing property of the parties is to be identified and only that existing property is to be divided or adjusted.”

However, although such contributions would now be considered under those parts of the Act that deal with historical contributions (s79(4)) and current and future circumstances (s 79(5)), they can still influence property division. Referring to the 2005 case of Omacini, their Honours said: “ s 79 now directs that the categories identified in Omacini pre-amendment that were notionally added back are to be considered in ensuring a just and equitable outcome, either by way of historical contributions, or by way of their relationship to and impact upon the current and future circumstances at the s 79(5) stage.”

What does it mean?

Add-backs are out! The Shinohara decision confirms the end of notional addbacks under the amended section 79(3) of the Act.
Even partial property and legal fees, which were standard add backs, are now a thing of the past.

Past financial contributions must now be considered through the statutory framework for historical contributions and future needs, rather than by making adjustments to the asset pool.

Legal strategies must now be amended. Family lawyers often sought the early release of funds to assist parties in meeting day-to-day expenses and legal fees, on the basis that these would form part of their final property settlement. As a consequence of this decision, any early release of funds is just money spent and will not be considered as part of the final property pool. So careful consideration is now required before requesting or agreeing to an early release of funds.

Here to help

Contact us for legal advice or representation if you are attempting to navigate a complex property settlement.

11/10/2025

What is the effect of making time of the essence in a contract?

Sometimes a contract says that ‘time is of the essence’ in relation to some or all of the contractual obligations. This may be specified in the provision that imposes the obligation or it may be a ‘boilerplate’ term. These statements may be confusing – after all, isn’t timely performance of a contact ALWAYS important?

What does the law say?

Where a contract stipulates that ‘time is of the essence’ in respect of an obligation, timely performance of that obligation is likely to be considered an essential term (or a ‘condition’) of the contract.
If a term of a contract is an essential term, the party relying on the term may be able to terminate the contract at common law (in addition to any termination rights specifically drafted into the contract) if the other party breaches that term.

Where a contract stipulates that ‘time is of the essence’ with respect to an obligation, late performance of that obligation may entitle the non-defaulting party to terminate the agreement.
The exact phrase ‘time is of the essence’ does not necessarily need to be included in the agreement for parties to agree that timely performance is an essential term. Other drafting can have the same effect – for example, where a contract expressly states that, where a time stipulation is not met, a party may terminate the agreement.
In certain circumstances ‘time of the essence' may also be implied into a contract in respect of obligations. However, for certainty, it is always preferable to use an express term like ‘time is of the essence’.

If a contract does not specify that ‘time is of the essence’, unless express termination rights in the contract apply, a mere failure to comply with a time period specified in the contract does not generally entitle the other party to terminate. However, delays can impact a party’s ability to exercise rights that are specified as applying only within a specific window of time. For example, in Chevron (Tapl) Pty Ltd v Pilbara Iron Company (Services) Pty Ltd [2021] WASCA 193 the Western Australia Court of Appeal considered whether a party was prevented from initiating a price review outside of the prescribed time period in a gas supply agreement even if the agreement did not provide that time was of the essence. Based on the construction of the agreement (and, in particular, the time periods involved in the complicated price review process once initiated), the court held that the time period in the price initiation clause was an essential term. So the price review could only be initiated within the time period provided for in the relevant term of the agreement.

What are the practical implications?

If timely performance of some or all obligations is important in your contract, you should consider expressly providing that ‘time is of the essence’ in relation to those obligations.

Certain types of agreements typically provide that time is of the essence for key obligations, for example, agreements for the sale of real estate or the supply of perishable goods. This makes sense where the benefit of the contract will be difficult or impossible to realise if performance is delayed.

There may be good reasons why the timing is important. It may be helpful to provide that ‘time is of the essence’ to provide leverage (in the form of a right to terminate the agreement) in the event of a delay. However, you should consider whether a right to terminate is right for your circumstances or whether the contract can include more specific remedies or consequences to deal with delays to critical milestones. If you exercise your right to terminate your contract, you may be no closer to getting what you need done on time.

If you need to protect yourself from delayed performance, you may have better-suited tools at your disposal such as:
1. liquidated damages clauses; or
2. requiring the delayed party to develop and implement a remediation plan if they are delayed (e.g. by reprioritising work or deploying additional resources to make up for the delay).

Counterparties may often be reluctant to agree to make time of the essence, especially if the right to terminate is a disproportionate remedy for a short period of delay in meeting what an unimportant delivery obligation.

Consider the value of a termination right to you in the event of a delay, and whether there are other options you should consider instead of, or as well as, making time of the essence.

Here to Help

Contact us for advice about the phrase “time is of the essence” in your contract.

28/09/2025

What if the executor won’t provide a copy of the Will? (NSW)

When someone who has made a Will dies, the executor is responsible for administering the deceased estate in the beneficiaries’ best interests. If the executor won’t give beneficiaries or family members a copy of the Will, or if their behaviour is in other ways detrimental to beneficiaries, they can be held to account.

What are the executor’s duties?
An executor is responsible for organising the funeral and cremation or burial of the deceased. It is also the executor’s responsibility to deal with the estate’s assets and liabilities, which may include selling property, paying debts and distributing funds between beneficiaries.

An executor’s duties are to:
1. locate the final Will;
2. administer the estate in the beneficiaries’ best interests;
3. keep accurate records of transactions completed in relation to the estate;
4. communicate with the beneficiaries promptly and clearly;
5. finalise the estate within a reasonable time (generally one year from the deceased’s death);
6. give beneficiaries final statements confirming finalisation of the estate.

What can I do if the executor won’t give me a copy of the Will?

Section 54 of the Succession Act 2006 sets out the classes of persons entitled to inspect a deceased person‘s Will. A person who has a copy of the Will must give access to the Will to:
1. Anyone named in the Will;
2. The deceased’s child, spouse or partner;
3. A parent or guardian of the deceased;
4. Anyone who would be entitled to inherit from the deceased under the laws of intestacy;
5. The parent or guardian of a minor referred to in the Will or entitled to inherit under the laws on intestacy;
6. A person named as a beneficiary in an earlier Will by the deceased;
7. Anyone who may have a claim in law or equity against the estate of the deceased;
8. Any attorney under an enduring power of attorney made by the deceased;
9. Anyone committed with managing the deceased’s estate under the NSW Trustee and Guardian Act 2009 immediately before their death;
10. Anyone belonging to a class of person prescribed by the regulations.

If you belong to any of the above classes of person and the executor won’t give you a copy of the Will, you should seek legal advice.

Passing over an executor who won’t provide a copy of the Will
If an executor is unsuitable to act in the role or is behaving inappropriately, a beneficiary may apply to the Supreme Court of NSW to have them passed over. This means that they are not appointed as executor and someone else is appointed instead.
If the Will names more than one executor, passing over an executor may be simple as one of the other persons named may be appointed instead. If the Will names only one person as an executor, passing them over will require someone else to be appointed instead.

The court will require evidence as to why the person named as executor is not suitable to carry out the task. Courts are generally reluctant to overrule the deceased’s wishes as to who administers their estate and will not pass over an executor lightly. However, if there are serious concerns supported by evidence about an executor’s ability or suitability to act in the role, the court will pass them over and appoint someone else instead.

Removing an executor who won’t provide a copy of the Will
If a person named as an executor has already been granted probate and concerns about their behaviour arise, a beneficiary may apply to the Supreme Court to remove them as executor. The application must be accompanied by evidence of why the person is not capable of or suitable to act as an executor. An executor refusing to give a beneficiary a copy of the Will may be sufficient evidence.

If the court is satisfied that an executor has been guilty of significant misconduct or is not capable of carrying out their executorial duties, it will remove them as executor and appoint another person in their place.
Here to Help

Contact us for legal advice or representation concerning the removal of an executor.

06/09/2025

Executor’s Duties in Probate: Administering the Deceased’s Estate
Introduction

Being named as an executor in someone’s will is an important responsibility. Executors are entrusted with overseeing the probate process, which involves managing and distributing the deceased’s estate according to their final wishes and the law. Understanding the role, duties, and legal obligations of an executor is essential for anyone taking on this responsibility. This article explores an executor’s key duties, their legal authority, and the steps involved in probate administration.

Understanding the Role of an Executor

The executor has a crucial role in the probate process as the deceased’s legal representative. Executors are given the legal authority to manage the deceased’s estate such that all assets are distributed as outlined in the will. They also hold a fiduciary duty to act in the beneficiaries and the estate’s best interests, meaning they must carry out their tasks with diligence, honesty, and integrity.

An executor’s legal authority includes dealing with creditors, making financial decisions on the estate’s behalf, and handling tax obligations. Executors must follow probate law and the terms of the will to avoid legal consequences or potential disputes. Given the complexity of probate administration, it’s often advisable for executors to seek legal guidance, especially if the estate includes complex financial matters or substantial assets.

Executor’s Key Duties and Tasks

Administering an estate involves multiple tasks, which executors must handle accurately and within legal timeframes. Below are some of the duties for which executors are responsible during probate:

Identifying and Valuing Assets
The first step in the probate process is identifying all assets owned by the deceased, such as real estate, bank accounts, personal property and investments. Executors must obtain valuations to determine the estate’s total value, which is essential for calculating debts, taxes, and distributions. Accurate asset identification and valuation are crucial for a transparent probate process.

Notifying Beneficiaries and Creditors

Executors must notify all beneficiaries named in the will, keeping them updated on the probate process and informing them of their entitlements. Additionally, creditors should be informed about the deceased’s passing, allowing them to make claims on the estate if applicable. This is to ensure that all debts and obligations are accounted for before asset distribution.
Paying Debts and Taxes

One of the executor’s duties is to settle any outstanding tax liabilities and debts. This includes paying off credit card debts, personal loans, and any other financial obligations. Executors are also responsible for filing the deceased’s final tax return and paying any taxes owed by the estate. Failure to address these obligations can cause legal complications, so completing this step is vital.

Distributing Assets to Beneficiaries

Once debts and taxes are settled, the executor can proceed with distributing the remaining assets to beneficiaries as specified in the will. This may involve distributing financial assets, transferring ownership of property, or selling items to divide the proceeds.

Executors must follow the instructions in the will precisely to ensure that each beneficiary receives their designated inheritance.

Keeping Accurate Records and Adhering to Legal Timelines
Throughout the probate process, executors must maintain detailed records of all transactions, communications, and decisions made on behalf of the estate. This includes documenting, debt payments, asset valuations, tax filings, and distributions to beneficiaries. It is crucial that the executor adhere to legal timelines, as probate proceedings often have strict deadlines that executors must follow.

Accurate record-keeping and timeline management provide transparency and help to ensure a smooth probate process, which can prevent disputes among beneficiaries. Executors who fail to meet these responsibilities may face legal challenges or personal liability, emphasising the importance of careful administration.

Conclusion

The role of an executor is both challenging and rewarding, as it requires a combination of legal understanding, financial management, and attention to detail. By fulfilling their duties with accuracy and diligence, executors can administer the deceased’s estate according to their wishes and within the bounds of the law. Seeking professional guidance can be invaluable for executors to address any complexities that may arise during the probate process.

Here to Help
Contact us if you need assistance with probate or executor duties.

23/08/2025

Estate planning and your business (NSW)

Estate planning is the process by which a person makes a ‘road map’ on what should happen to their assets if they become incapacitated or pass away. These wishes are generally expressed in a Will, but estate planning also encompasses things such as how your superannuation and your debts are dealt with after you pass away.

One important aspect of estate planning is addressing what happens with your business, whether you are a small operator who wholly owns your own business, a co-owner in a partnership, a company shareholder or director, or an appointor, trustee or unitholder in a trust.

The structure of your business determines how it should be dealt with in an estate plan, but the same principle applies: to protect your assets and ensure that your chosen beneficiaries benefit from the value of your business.

By considering business succession planning and how to include your business in your estate. you can ensure the maintenance of the value of the business and avoid potential conflicts among successors about what to do with it after your passing.

What are the key things to consider?

Sole traders: If you are a sole trader who 100% owns your business, estate planning is a relatively simple exercise in which you pass the value and assets of the business on to your chosen beneficiaries via your will.

As an unincorporated sole trader, however, your personal liability for any debts of the business is unlimited and this should be addressed in an estate plan. There are also limited tax benefits because a sole trader is taxed on their income from the business at their marginal tax rate.

Where a sole trader has a specialist skill or their successors have no interest in running the business after the owner’s death – the estate plan may address how the business should be sold. However, a capital gain from such a sale can’t be split between family members, and a capital loss will impact those beneficiaries’ personal assets.

Partnerships: In partnership structures, it’s advisable to have a legally enforceable partnership agreement (sometimes called a ‘buy-sell’ agreement) in place setting out each partner’s equity in the business and what is to happen in the event of one partner’s death. The agreement may pass on the deceased partner’s share of the business to his or her successors. Alternatively, it may facilitate the other partners buying the deceased partner’s share of the business rather than working with a new partner who is unfamiliar with the business. The proceeds of the sale can then be distributed to the deceased partner’s beneficiaries via their Will. In the absence of an agreement, the Partnership Act 1892 (NSW) will apply.

Companies and trusts: If your business is run via a company structure, it will be important to have a shareholders’ agreement to determine what happens to the ownership of the company in the event of your death. As a director with shares in the company, you can pass these shares to your beneficiaries through your will (but not the assets of the business, such as a property, which are owned by the company). A shareholders’ agreement would address how voting rights and the right to receive dividends and capital work in the context of succession, and a situation where your fellow directors or shareholders wish to buy your share.

If you own your shares via a family trust, control of the shares is passed following the trust deed. Family businesses are often run through a discretionary family trust, which offers tax advantages and asset protection in the event of a beneficiary experiencing other pressing cash flow problems or becoming bankrupt.

Business assets held in a family discretionary trust are considered non-estate assets and so, cannot be disposed of via a business owner’s Will. The trustee determines how beneficiaries receive any value from the business following the trust deed, which offers the business owner a layer of protection.

Many business owners will also use a trust structure because, if they passed on business assets through their Will, they may become the subject of a family provision claim from someone who claims they should have been more adequately provided for in the deceased owner’s Will. This claim is much more difficult to pursue if the business assets are held in a family trust structure.

Dividing assets between family members

There are other reasons for you to consider early what will become of your business after your passing.

By considering transferring ownership of the business to a successor before you die, apart from peace of mind about the future of the business, you may be able to take advantage of capital gains tax concessions that otherwise may not be available.

If a business owner’s child or children work in the business and the business owner’s other child or children have no interest or involvement in the business, and if the business remains viable after the owner’s death, the child or children involved in the business may be faced with an onerous burden of raising funds to buy out a sibling’s share of the business left to them in the owner’s Will. An estate plan can mitigate these circumstances by ensuring that other assets of a value equivalent to the interest of the non-interested sibling/s (such as a life insurance policy) are passed on to them.

Here to Help

Consulting with solicitors, accountants and financial advisers will help you to make the right estate planning decisions. Contact us today to discuss a plan tailored to your individual needs.

16/08/2025

Trustee Duties (NSW)

A trustee is a company or a person responsible for administering a trust, such as a deceased estate. In New South Wales, the Trustee Act 1925 sets out trustee’s duties.

A trust can have up to 4 trustees and a court or a trust-appointed person can replace, add or remove a trustee.

Common law duties

A trustee’s main duties which have arisen from case law include a duty to:
• act in the best interests of the beneficiary;
• obey the terms of the trust;
• keep trust property separate from their own;
• invest trust funds responsibly;
• only delegate responsibilities if authorised by the trust terms;
• exercise powers in accordance with the trust (i.e. make decisions, and at an appropriate time);
• perform trustee duties without payment or compensation, unless authorised by the trust terms; and
• keep accurate trust records and account to beneficiaries.
Trustee responsibilities

The main trustee duties specified by the Trustee Act, which align with common law duties, are a duty to:
• invest trust funds in investments that are not speculative or hazardous;
• take advice;
• exercise the powers of a trustee in the best interest of all present and future beneficiaries of the trust; and
• act impartially toward beneficiaries and different classes of beneficiaries.

Investment

The Trustee Act sets out rules for a trustee regarding investment of trust funds. The trustee must “exercise the care, diligence and skill that a prudent person would exercise in managing the affairs of other persons”, whether or not the trustee’s employment, business, or profession involves investing money on behalf of others.
When choosing an investment, a trustee must consider factors such as:
• the diversification of investments;
• the purposes of the trust and the needs and circumstances of beneficiaries;
• the nature and risk of investments;
• maintaining the value of the trust;
• depreciation, appreciation and income;
• the term of the investment compared to the likely duration of the trust;
• associated costs;
• tax liability and inflation; and
• the results of a review of existing investments.

A trustee has the right to obtain impartial and independent investment advice and pay for this from trust funds.

Trustee powers

The Trustee Act allows a trustee to carry on a business using trust property It grants a trustee the power to mortgage, sell, lease, repair, insure or improve trust property to carry out their duties.

A trustee can use trust funds to pay all expenses incurred in executing the trust and to reimburse themselves.

A change of trustee

A trustee may be replaced or added when a trustee:
• remains out of NSW for more than a year without having delegated their trust responsibility;
• remains out of NSW for more than 2 years;
• refuses to act as a trustee or is unfit to act;
• no longer wants to be a trustee;
• is removed under a power stated in the trust;
• dies; or
• is a corporation that is dissolved.

A person nominated by the trust, or if there is no such person, then a surviving or continuing trustee, or a legal representative of the last surviving or continuing trustee, can appoint a replacement trustee. The replacement trustee has all the same authorities, powers and discretions as an original trustee.

A court can appoint new trustees if it is expedient, or if appointing a new trustee is inexpedient, difficult or impracticable without the court’s help. A court can appoint a new trustee if the existing trustee is mentally unfit, is convicted of a serious crime, or is bankrupt, or is a corporation in liquidation.

A court will remove a trustee if it is satisfied this is it in the beneficiaries’ interests or to secure trust property and ensure the trust runs efficiently. Reasons include that the trustee has acted unfairly toward beneficiaries or has engaged in misconduct, or when trustees are in conflict. The court’s authority is protective rather than punitive.

Breaches of duties

The court can take action if a trustee breaches their responsibilities in carrying out their duties. In deciding the trustee’s liability, the court can consider:
• the purpose and nature of the trust;
• whether the trust investments were made using an investment strategy in accordance with a trustee’s duty;
• whether the trustee considered the factors for investment, appropriate to the circumstances of the trust;
• the extent to which the trustee acted on independent and impartial advice of a person competent to give the advice.

If a trustee’s investment causes a loss, the court can set off all or part of the loss against all or part of a gain from another investment.

If a trustee commits a breach on the request of or at the instigation of a beneficiary, the court can order that all or any part of the beneficiary’s interest in the trust be impounded.

The court also has the power to make an order to compel a trustee to act when they neglect or refuse to:
• sell property;
• collect any income of any property, or
• sue for or recover any property as required.

Here to Help

Contact us for representation or advice regarding trustee duties.

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