HENSMAN [2015] NZHC 1004

HENSMAN [2015] NZHC 1004

The Court found the 2016 vesting date was a drafting mistake inconsistent with the trust's purpose; all adult beneficiaries consented, the proposed amendments are administrative and not detrimental to minors or unborn beneficiaries, and therefore under s64A the Court granted the variations to extend the trust period and to clarify the power of appointment.

Citation
[2015] NZHC 1004
Parties
Trustee/applicant: Grant Hylton Hensman; Trustee/applicant: Sharyn Kathleen Hensman; Trustee/applicant: Bruce Herbert Robertson
Court
High Court
Jurisdiction
New Zealand
Judgment Date
11 May 2015
Procedural Posture
Section 64 a Trustee Act 1956 Application to Vary Trust Deed / Oral Judgment at Hearing and Final Decision
Outcome
Application under s64A granted and trust deed varied as proposed
Legal Topics
Trust Variation, Perpetuity Rule, Power of Appointment, Rectification for Mistake, Minor and Unborn Beneficiaries
Trusts Equity Civil Procedure Trust Variation Perpetuity Rule Power of Appointment Rectification for Mistake Minor and Unborn Beneficiaries

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Parties

Grant Hylton Hensman

Trustee/applicant

Sharyn Kathleen Hensman

Trustee/applicant

Bruce Herbert Robertson

Trustee/applicant

Procedural Posture

Section 64 a Trustee Act 1956 Application to Vary Trust Deed / Oral Judgment at Hearing and Final Decision

Legal Issues

  1. 1 Whether the final distribution date of 31 March 2016 was a mistake requiring correction
  2. 2 Whether the trust deed lacked a defined perpetuity period and needed amendment to avoid perpetuity rule issues
  3. 3 Whether the power of appointment was uncertain as to joint or several exercise and succession on death or incapacity

Ratio Decidendi

The Court found the 2016 vesting date was a drafting mistake inconsistent with the trust's purpose; all adult beneficiaries consented, the proposed amendments are administrative and not detrimental to minors or unborn beneficiaries, and therefore under s64A the Court granted the variations to extend the trust period and to clarify the power of appointment.

Court Disposition

Application under s64A granted and trust deed varied as proposed

Orders

  • The trust deed amended to replace the final distribution date provision with a vesting date of the day upon which 80 years from 13 December 2000 expires, or such earlier day as the Trustees may by deed appoint consistent with the perpetuity period.
  • Insert a definition of 'Perpetuity period' as the day upon which the period of 80 years from 13 December 2000 expires, or such other period as trustees may by deed appoint to avoid breaching the rule against perpetuities.