HASZARD v THE ESTATE OF BURNSIDE [2015] NZHC 1296

HASZARD v THE ESTATE OF BURNSIDE [2015] NZHC 1296

The court approved the proposed variation under s64A because the incapacitated life tenant's interests were adequately protected: independent trustees control two alternative trusts with sufficient assets and cash reserves to meet her needs, the indemnity and undertakings addressed enforcement concerns, and it was likely she would have consented if capable; therefore the variation was not to her detriment and was in the overall best interests of the beneficiaries as a class.

Citation
[2015] NZHC 1296
Parties
Plaintiff Executor/trustee: Glenn Anthony Haszard; Plaintiff Executor/trustee: Philip Russell Saunders; Defendant Estate: The Estate of David Arthur Burnside; Incapacitated Beneficiary (litigation Ward): Edna May Burnside
Court
High Court
Jurisdiction
New Zealand
Judgment Date
9 June 2015
Procedural Posture
Application Under Part 18 High Court Rules and Ss 64/64 a Trustee Act 1956 for Court Approval of Variation of Trusts Arising Under Will / Interlocutory Application for Approval Under S64 a (application by Executors/trustees)
Outcome
Application approved: court authorises variation of trusts arising under the will under s64A Trustee Act 1956 on behalf of the incapacitated beneficiary
Legal Topics
Variation of Trust, Court Approval Under S64 a Trustee Act 1956, Life Interest, Incapacity and Litigation Guardianship, Indemnity and Enforcement, Conflict of Interest
Trust Law Probate and Estate Administration Succession Law Elder Law Equity and Fiduciary Obligations Variation of Trust Court Approval Under S64 a Trustee Act 1956 Life Interest +3 more

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 4 Authorities cited 7 Party arguments 2 Amounts and remedies 11
Sign in to unlock

Parties

Glenn Anthony Haszard

Plaintiff Executor/trustee

Philip Russell Saunders

Plaintiff Executor/trustee

The Estate of David Arthur Burnside

Defendant Estate

Edna May Burnside

Incapacitated Beneficiary (litigation Ward)

Procedural Posture

Application Under Part 18 High Court Rules and Ss 64/64 a Trustee Act 1956 for Court Approval of Variation of Trusts Arising Under Will / Interlocutory Application for Approval Under S64 a (application by Executors/trustees)

Legal Issues

  1. 1 Whether the Court should approve the proposed variation of the trusts arising under the will under s64A given the beneficiary's incapacity
  2. 2 Whether the incapacitated life tenant would likely have consented if of full capacity and properly advised
  3. 3 Whether alternative trusts and other assets provide sufficiently certain provision for the life tenant if she surrenders the life interest

Ratio Decidendi

The court approved the proposed variation under s64A because the incapacitated life tenant's interests were adequately protected: independent trustees control two alternative trusts with sufficient assets and cash reserves to meet her needs, the indemnity and undertakings addressed enforcement concerns, and it was likely she would have consented if capable; therefore the variation was not to her detriment and was in the overall best interests of the beneficiaries as a class.

Court Disposition

Application approved: court authorises variation of trusts arising under the will under s64A Trustee Act 1956 on behalf of the incapacitated beneficiary

Orders

  • Approve the proposed arrangement varying the trusts arising under the will of David Arthur Burnside as set out in the application
  • Transfer the assets subject to the life interest (clauses 5, 6 and 7 of the will) to the residuary beneficiaries in accordance with clauses 5(b) and 7(c) of the will