HOPE GOWER FAMILY TRUST & GORDON GOWER FAMILY TRUST [2020] NZHC 890

HOPE GOWER FAMILY TRUST & GORDON GOWER FAMILY TRUST [2020] NZHC 890

Given unanimous consent of existing beneficiaries of full capacity, the limited and speculative nature of any detriment to potential future grandchildren, the significant trust asset values and the practical need to allow family members to act as trustees to preserve and potentially increase trust value, the Court, exercising its wide discretion under s64A, approved the proposed variations as not detrimental to those who cannot legally consent.

Citation
[2020] NZHC 890
Parties
Trust: Hope Gower Family Trust; Trust: Gordon Gower Family Trust; Applicant Trustee: George Alexander Hopeful Gower; Applicant Trustee: Gordon Robert Hopeful Gower
Court
High Court
Jurisdiction
New Zealand
Judgment Date
4 May 2020
Procedural Posture
Application Under Section 64 a of the Trustee Act 1956 to Vary Trust Deeds / Judgment on the Papers (final)
Outcome
Applications granted
Legal Topics
Variation of Trust, Trustee Self‑benefit, Unborn Beneficiaries, Section 64 a Trustee Act 1956
Trusts Equity Civil Procedure Variation of Trust Trustee Self‑benefit Unborn Beneficiaries Section 64 a Trustee Act 1956

Case Brief

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Parties

Hope Gower Family Trust

Trust

Gordon Gower Family Trust

Trust

George Alexander Hopeful Gower

Applicant Trustee

Gordon Robert Hopeful Gower

Applicant Trustee

Procedural Posture

Application Under Section 64 a of the Trustee Act 1956 to Vary Trust Deeds / Judgment on the Papers (final)

Legal Issues

  1. 1 Whether the Court should approve variations under s64A on behalf of persons who cannot legally consent (including potential unborn beneficiaries)
  2. 2 Whether service could be dispensed with
  3. 3 Whether including trustees as discretionary beneficiaries and deleting the prohibition on trustee benefit would be detrimental to future beneficiaries

Ratio Decidendi

Given unanimous consent of existing beneficiaries of full capacity, the limited and speculative nature of any detriment to potential future grandchildren, the significant trust asset values and the practical need to allow family members to act as trustees to preserve and potentially increase trust value, the Court, exercising its wide discretion under s64A, approved the proposed variations as not detrimental to those who cannot legally consent.

Court Disposition

Applications granted

Orders

  • The Hope Gower Family Trust Deed is varied by amending cl 2.8 to include George Alexander Hopeful Gower as a beneficiary of the Trust
  • The Hope Gower Family Trust Deed is varied by deleting cl 11