BROWN v HALLET [2016] NZHC 2861

BROWN v HALLET [2016] NZHC 2861

The Court approved the Deed of Variation under s 64A because the variation is not to the detriment of the minor and unborn beneficiaries when viewed as a whole: adult beneficiaries consent, the trust has substantial capital mitigating any loss of future income/capital, the impact on minors/unborn is very limited, and indirect benefits (family welfare and honour) weigh in favour of approval; accordingly the court may ratify past payments and confirm the settlor's income beneficiary status.

Citation
[2016] NZHC 2861
Parties
Applicant (trustee): Thomas David Malcolm Brown; Applicant (trustee): Donald Graham Dobson; Applicant (trustee): David O'Brien Baker; Respondent (beneficiary): Rosemary Shona Hallet; Respondent (beneficiary): Vicky Shona Ordish; Respondent (beneficiary): Alister Douglas Malcolm Brown
Court
High Court
Jurisdiction
New Zealand
Judgment Date
29 November 2016
Procedural Posture
Application Under S 64 a Trustee Act 1956 Seeking Court Approval of Trust Variation on Behalf of Minors and Unborn Beneficiaries / On the Papers; Determination and Final Judgment Approving Variation
Outcome
Deed of Variation of the Waihi Station Trust approved under s 64A of the Trustee Act 1956 on behalf of the minor and unborn beneficiaries
Legal Topics
Trust Variation, Section 64 a Trustee Act 1956, Beneficiary Consent, Unborn Beneficiaries, Court Approval of Trust Amendments
Trusts Family Law Estates and Succession Trust Variation Section 64 a Trustee Act 1956 Beneficiary Consent Unborn Beneficiaries Court Approval of Trust Amendments

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 5 Authorities cited 5 Party arguments 2 Amounts and remedies 3
Sign in to unlock

Parties

Thomas David Malcolm Brown

Applicant (trustee)

Donald Graham Dobson

Applicant (trustee)

David O'Brien Baker

Applicant (trustee)

Rosemary Shona Hallet

Respondent (beneficiary)

Vicky Shona Ordish

Respondent (beneficiary)

Alister Douglas Malcolm Brown

Respondent (beneficiary)

Procedural Posture

Application Under S 64 a Trustee Act 1956 Seeking Court Approval of Trust Variation on Behalf of Minors and Unborn Beneficiaries / On the Papers; Determination and Final Judgment Approving Variation

Legal Issues

  1. 1 Whether the proposed Deed of Variation can be approved under s 64A of the Trustee Act 1956 on behalf of minor and unborn beneficiaries
  2. 2 Whether the variation is to the detriment of the minors or unborn beneficiaries
  3. 3 Whether past payments to the settlor and confirmation of his income beneficiary status can be ratified

Ratio Decidendi

The Court approved the Deed of Variation under s 64A because the variation is not to the detriment of the minor and unborn beneficiaries when viewed as a whole: adult beneficiaries consent, the trust has substantial capital mitigating any loss of future income/capital, the impact on minors/unborn is very limited, and indirect benefits (family welfare and honour) weigh in favour of approval; accordingly the court may ratify past payments and confirm the settlor's income beneficiary status.

Court Disposition

Deed of Variation of the Waihi Station Trust approved under s 64A of the Trustee Act 1956 on behalf of the minor and unborn beneficiaries

Orders

  • The Court approves the Deed of Variation of the Waihi Station Trust under s 64A of the Trustee Act 1956 on behalf of the minor and unborn grandchildren.