In the matter of an application under s 64A of the Trustee Act 1956 between Argus & Anor [2013] NZHC 3010

In the matter of an application under s 64A of the Trustee Act 1956 between Argus & Anor [2013] NZHC 3010

The Court granted approval under s 64A because the variations were in the best interests of the infant, unborn and unascertained beneficiaries: deferring distribution avoided likely penal tax consequences, other amendments benefitted or did not prejudice those beneficiaries, and removing the audit requirement avoided unnecessary expense; adult beneficiaries consented and trustees supported the changes.

Citation
[2013] NZHC 3010
Parties
Applicant/trustee: Vasiliki Koula Argus; Applicant/trustee: Paul Franklin Barber
Court
High Court
Jurisdiction
New Zealand
Judgment Date
13 November 2013
Procedural Posture
Trust Variation Application Under S 64 a Trustee Act 1956 / On the Papers; Judgment Delivered 13 November 2013
Outcome
Application granted pursuant to s 64A Trustee Act 1956
Legal Topics
Variation of Trust Deed, Extension of Distribution Date, Trustee Powers (advancement, Appointment/removal), Approval for Infant/unascertained Beneficiaries, Trust Administration Costs, Statutory Interpretation of Complying/qualifying Trust
Trusts Taxation Equity Civil Procedure Variation of Trust Deed Extension of Distribution Date Trustee Powers (advancement, Appointment/removal) Approval for Infant/unascertained Beneficiaries +2 more

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Parties

Vasiliki Koula Argus

Applicant/trustee

Paul Franklin Barber

Applicant/trustee

Procedural Posture

Trust Variation Application Under S 64 a Trustee Act 1956 / On the Papers; Judgment Delivered 13 November 2013

Legal Issues

  1. 1 Whether the Court should approve variations to a trust deed under s 64A on behalf of infant, unborn and unascertained beneficiaries
  2. 2 Whether it is in beneficiaries' best interests to defer distribution because of potential penal tax consequences
  3. 3 Whether variations converting fixed capital entitlement to discretionary, empowering advancement, altering appointment/removal powers and removing audit obligation are permissible

Ratio Decidendi

The Court granted approval under s 64A because the variations were in the best interests of the infant, unborn and unascertained beneficiaries: deferring distribution avoided likely penal tax consequences, other amendments benefitted or did not prejudice those beneficiaries, and removing the audit requirement avoided unnecessary expense; adult beneficiaries consented and trustees supported the changes.

Court Disposition

Application granted pursuant to s 64A Trustee Act 1956

Orders

  • Trustees' application to vary the terms of the Trust Deed as set out in the first schedule to the application dated 4 October 2013 is granted
  • Distribution date amended as sought (to 29 June 2045 or such earlier date as trustees may appoint) and other variations approved (income to be added to capital, conversion to discretionary capital beneficiary subject to survival, express power of advancement, revised appointment/removal powers, removal of...