HARVEY TRUST HC AK CIV 2009-404-2841

HARVEY TRUST HC AK CIV 2009-404-2841

Because the trustees demonstrated a practical need to permit resettlement given differing jurisdictions and all known beneficiaries consented, and because the Court must guard against possible unborn beneficiaries, the Court has jurisdiction under s64A and granted the order adding clause 3(g) as proposed.

Citation
openlaw-5abb6090_bebd_4526_bf42_b34a813cd900.pdf
Parties
Trustee: Timothy John MacAvoy; Trustee: Brian Mayo-Smith; Trustee: Peter Alexander Herdson; Settlor: Ian Alexander Harvey (deceased); Beneficiary: Sandra Davies; Beneficiary: Mary-Louise Herdson
Court
High Court
Jurisdiction
New Zealand
Judgment Date
3 June 2009
Procedural Posture
Application Under Trustee Act 1956 (s64 A) to Vary Trust / Judgment (oral)
Outcome
Application granted
Legal Topics
Trust Variation, Resettlement of Trust Funds, Jurisdiction to Vary Trusts, Consent of Beneficiaries
Trusts Civil Procedure Taxation (cross Border) Trust Variation Resettlement of Trust Funds Jurisdiction to Vary Trusts Consent of Beneficiaries

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Parties

Timothy John MacAvoy

Trustee

Brian Mayo-Smith

Trustee

Peter Alexander Herdson

Trustee

Ian Alexander Harvey (deceased)

Settlor

Sandra Davies

Beneficiary

Mary-Louise Herdson

Beneficiary

Procedural Posture

Application Under Trustee Act 1956 (s64 A) to Vary Trust / Judgment (oral)

Legal Issues

  1. 1 Whether the Court has jurisdiction under s64A Trustee Act 1956 to authorize resettlement of trust funds into separate trusts
  2. 2 Whether variation is appropriate given consent of all known beneficiaries
  3. 3 Whether the Court must protect possible unborn beneficiaries before approving resettlement

Ratio Decidendi

Because the trustees demonstrated a practical need to permit resettlement given differing jurisdictions and all known beneficiaries consented, and because the Court must guard against possible unborn beneficiaries, the Court has jurisdiction under s64A and granted the order adding clause 3(g) as proposed.

Court Disposition

Application granted

Orders

  • A new clause 3(g) shall be added to the trust deed in the terms proposed permitting resettlement of all or any part of the trust fund with written consent of any person having a prior life interest
  • No order as to costs; trustees entitled to meet their reasonable costs and disbursements out of existing trust funds