IRWIN v IRWIN [2021] NZHC 926

IRWIN v IRWIN [2021] NZHC 926

The Court approved the variation because the statutory criteria in s124 were met: adult beneficiaries did not oppose the change, evidence established the trust's terms were inconsistent with beneficiaries' needs and the settlor's intentions supported the variation, and the proposed clause addressed practical and tax...

Source-derived case information.

Citation
[2021] NZHC 926
Parties
Applicant (trustee): Peter John Irwin; Applicant (trustee): David John Chapman; Respondent (final Beneficiary): Catherine Anne Irwin; Respondent (final Beneficiary): Jocelyn Mary Foster; Respondent (final Beneficiary): Peter John Irwin; Respondent (final Beneficiary): Richard Paul Irwin
Court
High Court
Jurisdiction
New Zealand
Judgment Date
28 April 2021
Procedural Posture
Application Under Trusts Act 2019 to Approve Trust Variation / On the Papers; Judgment Approving Variation (28 April 2021)
Outcome
Application granted; trust variation approved.
Legal Topics
Trust Variation, Court Approval of Trust Variation, Beneficiary Interests, Settlor Intentions, Costs
Trusts Equity Succession Tax (incidental) Trust Variation Court Approval of Trust Variation Beneficiary Interests Settlor Intentions +1 more

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Parties

Peter John Irwin

Applicant (trustee)

David John Chapman

Applicant (trustee)

Catherine Anne Irwin

Respondent (final Beneficiary)

Jocelyn Mary Foster

Respondent (final Beneficiary)

Peter John Irwin

Respondent (final Beneficiary)

Richard Paul Irwin

Respondent (final Beneficiary)

Procedural Posture

Application Under Trusts Act 2019 to Approve Trust Variation / On the Papers; Judgment Approving Variation (28 April 2021)

Legal Issues

  1. 1 Whether the Court should approve the proposed trust variation under s124 of the Trusts Act 2019
  2. 2 Whether the proposed clause permitting capital distributions to the surviving settlor is consistent with beneficiaries' interests
  3. 3 Whether the statutory criteria in s124(3) (nature of interested persons, effect, benefit/detriment, settlor intentions) are satisfied

Ratio Decidendi

The Court approved the variation because the statutory criteria in s124 were met: adult beneficiaries did not oppose the change, evidence established the trust's terms were inconsistent with beneficiaries' needs and the settlor's intentions supported the variation, and the proposed clause addressed practical and tax considerations.

Court Disposition

Application granted; trust variation approved.

Orders

  • Approved variation clause: 'Up to the vesting day, the trustees may from time to time at their absolute discretion pay, apply or appropriate the whole of the capital and income of the Trust fund to or for the benefit of John Cedric Irwin.'
  • The remaining terms of the trust deed are to remain in full force and effect.