DE BERNARDO AND ORS V DE BERNARDO AND ORS HC WN CIV-2010-485-380

DE BERNARDO AND ORS V DE BERNARDO AND ORS HC WN CIV-2010-485-380

Applying s64A and established authorities, the court concluded the variation should be approved because the likely benefits to the minor and contingent/unborn classes (probable participation at vesting, family cohesion and welfare) and the legitimate need for enhanced trustee powers to manage a $17m corpus over an extended term outweigh any detriment; the minor's expressed views and evidence on improbability of third-class members supported the exercise of the court's discretion to approve the Deed of Variation.

Citation
openlaw-775d5729_072e_4332_ae8e_50ed8ea1812c.pdf
Parties
Applicants: Ido Aurelio De Bernardo, Paul Valentino De Bernardo, Kay Teresa De Bernardo, John Renwick Harkness; First Class Beneficiaries: Paul Valentino De Bernardo, John Ido De Bernardo, Kay Teresa De Bernardo; Second Class Beneficiary (minor): Darcy Lee De Bernardo; Third Class Beneficiaries (unborn/potential): Paul Valentino De Bernardo, Kay Teresa De Bernardo, John Ido De Bernardo
Court
High Court
Jurisdiction
New Zealand
Judgment Date
31 March 2010
Procedural Posture
Application to Vary Trust Under S64 a Trustee Act 1956 / Hearing and Reserved Judgment on Application for Court Approval of Deed of Variation (judgment Delivered)
Outcome
Application to vary the De Bernardo Family Trust under s64A Trustee Act 1956 granted
Legal Topics
Variation of Trust, Perpetuities, Beneficiary Consent and Representation, Trustees' Powers, Court Approval Under S64 a
Trusts Property Law Succession Family Law Variation of Trust Perpetuities Beneficiary Consent and Representation Trustees' Powers +1 more

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Parties

Ido Aurelio De Bernardo, Paul Valentino De Bernardo, Kay Teresa De Bernardo, John Renwick Harkness

Applicants

Paul Valentino De Bernardo, John Ido De Bernardo, Kay Teresa De Bernardo

First Class Beneficiaries

Darcy Lee De Bernardo

Second Class Beneficiary (minor)

Paul Valentino De Bernardo, Kay Teresa De Bernardo, John Ido De Bernardo

Third Class Beneficiaries (unborn/potential)

Procedural Posture

Application to Vary Trust Under S64 a Trustee Act 1956 / Hearing and Reserved Judgment on Application for Court Approval of Deed of Variation (judgment Delivered)

Legal Issues

  1. 1 Whether the court should approve the Deed of Variation dated 30 September 2009 under s64A Trustee Act 1956 on behalf of minors, contingent and unborn beneficiaries
  2. 2 Whether extending the vesting/perpetuity period to 80 years (to 1 January 2057) is appropriate
  3. 3 Whether adding spouses, step-children and others as beneficiaries is permissible and whether it is detrimental to the minor and potential unborn beneficiaries

Ratio Decidendi

Applying s64A and established authorities, the court concluded the variation should be approved because the likely benefits to the minor and contingent/unborn classes (probable participation at vesting, family cohesion and welfare) and the legitimate need for enhanced trustee powers to manage a $17m corpus over an extended term outweigh any detriment; the minor's expressed views and evidence on improbability of third-class members supported the exercise of the court's discretion to approve the Deed of Variation.

Court Disposition

Application to vary the De Bernardo Family Trust under s64A Trustee Act 1956 granted

Orders

  • Court confirms and approves the Deed of Variation of Trust dated 30 September 2009
  • Insert full trust date into deed as 1 January 1977