GAVIN v GAVIN [2021] NZHC 550

GAVIN v GAVIN [2021] NZHC 550

The Court will approve the proposed variations because, after considering the s124 factors and independent counsel reports, the variations do not reduce or remove any vested interests of the minors, unborn or contingent beneficiaries and confer material benefits (including certainty, removal of competing beneficiaries, and protection from further litigation); removal of remote charitable beneficiary class is permitted given its negligible practical prospect of benefit.

Citation
[2021] NZHC 550
Parties
Applicant/first Respondent: Charlotte Teresa Gavin; Applicant/second Respondent: Nigel Joseph Gavin; Trust/respondent: Racecourse Trust; Trust/respondent: Charlotte Powell Family Trust; Trust/respondent: Headstart Trust; Trust/respondent: Daniel Powell Family Trust; Trust/respondent: McKenzie Family Trust; Interested Parties: Minor and Unborn Beneficiaries descended from Charlotte Powell; Interested Parties: Minor and Unborn Beneficiaries descended from Daniel Powell; Respondent/beneficiary: Daniel Powell; Applicant/respondent: John William Powell; Applicant/trustee: Public Trust
Court
High Court
Jurisdiction
New Zealand
Judgment Date
17 March 2021
Procedural Posture
Application for Court Approval of Trust Variations Under Trusts Act 2019 S124 / Hearing for Approval and Consent Orders (judgment)
Outcome
Applications granted; Court approved proposed variations to the Racecourse Trust, Charlotte Powell Trust, Headstart Trust, Daniel Powell Trust and McKenzie Trust on behalf of minors, unborn and contingent beneficiaries and made consent orders giving effect to the settlement.
Legal Topics
Variation of Trust, Court Approval for Minors and Unborn Beneficiaries, Settlement and Partition of Trust Interests
Trusts Equity Civil Procedure Variation of Trust Court Approval for Minors and Unborn Beneficiaries Settlement and Partition of Trust Interests

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Parties

Charlotte Teresa Gavin

Applicant/first Respondent

Nigel Joseph Gavin

Applicant/second Respondent

Racecourse Trust

Trust/respondent

Charlotte Powell Family Trust

Trust/respondent

Headstart Trust

Trust/respondent

Daniel Powell Family Trust

Trust/respondent

McKenzie Family Trust

Trust/respondent

Minor and Unborn Beneficiaries descended from Charlotte Powell

Interested Parties

Minor and Unborn Beneficiaries descended from Daniel Powell

Interested Parties

Daniel Powell

Respondent/beneficiary

John William Powell

Applicant/respondent

Public Trust

Applicant/trustee

Procedural Posture

Application for Court Approval of Trust Variations Under Trusts Act 2019 S124 / Hearing for Approval and Consent Orders (judgment)

Legal Issues

  1. 1 Whether the Court should approve proposed variations to multiple family trusts under s124 Trusts Act 2019 on behalf of minors and unborn beneficiaries
  2. 2 Whether the proposed variations would reduce or remove any vested interests of beneficiaries that would prevent approval
  3. 3 Whether removal of charitable beneficiaries and partitioning of reciprocal interests is permissible and in beneficiaries' interests

Ratio Decidendi

The Court will approve the proposed variations because, after considering the s124 factors and independent counsel reports, the variations do not reduce or remove any vested interests of the minors, unborn or contingent beneficiaries and confer material benefits (including certainty, removal of competing beneficiaries, and protection from further litigation); removal of remote charitable beneficiary class is permitted given its negligible practical prospect of benefit.

Court Disposition

Applications granted; Court approved proposed variations to the Racecourse Trust, Charlotte Powell Trust, Headstart Trust, Daniel Powell Trust and McKenzie Trust on behalf of minors, unborn and contingent beneficiaries and made consent orders giving effect to the settlement.

Orders

  • Approval granted on behalf of minor and unborn beneficiaries of the CP Trust to variations to that trust
  • Approval granted on behalf of minor and unborn beneficiaries of the Headstart Trust to variations to that trust