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Kate Davenport QC and Carmel Walsh successfully defended a High Court claim brought against Trustees of a family trust settled by a mother for her benefit and that of her daughter and grandchildren. The case was brought by the daughter’s husband seeking provision from the Trust under s.182 Family Proceedings Act. In Da Silva v Da Silva [2016] NZHC 2064 Justice Peters dismissed the husband’s claim. She held that Clayton v Clayton did not apply, finding that there was no proximity between the parties’ marriage and the settlement of the trust.

This is the first reported case since the Supreme Court ruling in Clayton and helps to clarify that the reasoning in Clayton does not apply to all trusts settled by third parties to the marriage unless they are clearly nuptial in nature.