JONES & ORS AS TRUSTEES v COLLINGS & ORS, [2015] NZHC 3002

JONES & ORS AS TRUSTEES v COLLINGS & ORS, [2015] NZHC 3002

The Court will approve the proposed variation under s 64A on behalf of the two minors and all unborn beneficiaries only if adequate protection is and can be provided for all unborn potential beneficiaries (not confined to great‑grandchildren), specifically by satisfactory life insurance/security to guard against any financial detriment; adopted persons not within the deed and illegitimate descendants not legitimated at the time of the deed are excluded; final approval subject to receipt of insurance arrangements and consequential drafting amendments.

Citation
[2015] NZHC 3002
Parties
Plaintiff Trustee: Clair Beryl MacPherson Jones; Plaintiff Trustee: Robert Arthur Winstone; Plaintiff Trustee: George Anthony Winstone; Defendant Beneficiary: Margaret Elizabeth Collings; Defendant Beneficiary: Pauline Mary Hook; Defendant Beneficiary: Jennifer Ruth Hook; Defendant Beneficiary: Nicholas Brian Hook; Defendant Beneficiary: Henry Macdonald Winstone; Defendant Beneficiary: Alexander George Winstone; Minor Beneficiary Defendant: Brian Carr; Minor Beneficiary Defendant: Timothy Winstone; Defendant Contingent/unborn Beneficiaries: Unborn beneficiaries
Court
High Court
Jurisdiction
New Zealand
Judgment Date
30 November 2015
Procedural Posture
Trust Variation/consent Under S 64 a Trustee Act 1956; Perpetuities Act S 7 Issues / Judgment Following Hearing (consent Conditional on Further Evidence)
Outcome
Court conditionally approved proposed variation under s 64A subject to satisfactory life insurance/security covering all unborn potential beneficiaries and receipt of final deed and submissions; reserved leave for further orders.
Legal Topics
Trust Variation Under S 64 a, Rule in Saunders V Vautier, Interpretation of Remoter Issue, Protection of Minors and Unborn Beneficiaries, Use of Life Insurance to Secure Contingent Interests
Trusts Perpetuities Estate Administration Civil Procedure Trust Variation Under S 64 a Rule in Saunders V Vautier Interpretation of Remoter Issue Protection of Minors and Unborn Beneficiaries +1 more

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Parties

Clair Beryl MacPherson Jones

Plaintiff Trustee

Robert Arthur Winstone

Plaintiff Trustee

George Anthony Winstone

Plaintiff Trustee

Margaret Elizabeth Collings

Defendant Beneficiary

Pauline Mary Hook

Defendant Beneficiary

Jennifer Ruth Hook

Defendant Beneficiary

Nicholas Brian Hook

Defendant Beneficiary

Henry Macdonald Winstone

Defendant Beneficiary

Alexander George Winstone

Defendant Beneficiary

Brian Carr

Minor Beneficiary Defendant

Timothy Winstone

Minor Beneficiary Defendant

Unborn beneficiaries

Defendant Contingent/unborn Beneficiaries

Procedural Posture

Trust Variation/consent Under S 64 a Trustee Act 1956; Perpetuities Act S 7 Issues / Judgment Following Hearing (consent Conditional on Further Evidence)

Legal Issues

  1. 1 Whether the Court may consent under s 64A to vest and terminate the trust on behalf of minors and unborn beneficiaries
  2. 2 Whether the words 'remoter issue' in the 1948 trust deed extend beyond great‑grandchildren to further generations
  3. 3 Whether adopted or illegitimate descendants are entitled as beneficiaries under the deed

Ratio Decidendi

The Court will approve the proposed variation under s 64A on behalf of the two minors and all unborn beneficiaries only if adequate protection is and can be provided for all unborn potential beneficiaries (not confined to great‑grandchildren), specifically by satisfactory life insurance/security to guard against any financial detriment; adopted persons not within the deed and illegitimate descendants not legitimated at the time of the deed are excluded; final approval subject to receipt of insurance arrangements and consequential drafting amendments.

Court Disposition

Court conditionally approved proposed variation under s 64A subject to satisfactory life insurance/security covering all unborn potential beneficiaries and receipt of final deed and submissions; reserved leave for further orders.

Orders

  • Approval granted in principle to variation and vesting proposal on behalf of two minors and unborn beneficiaries subject to provision of satisfactory life insurance/security covering all unborn potential beneficiaries and finalisation of deed wording
  • All health details to be marked strictly confidential on Court file