SADLIER & ORS AS TRUSTEES OF THE CORNERSTONE PREPAID FUNERAL TRUST [2019] NZHC 1140

SADLIER & ORS AS TRUSTEES OF THE CORNERSTONE PREPAID FUNERAL TRUST [2019] NZHC 1140

The Trust was validly constituted (three certainties present); s64A Trustee Act 1956 empowers the Court to approve variations that enlarge trustee powers; the proposed amendments (definition of companies, substitution powers, resettlement mechanics, trustee composition and appointment/removal powers, and perpetuity clause adjustment) are consistent with the trust's purpose and are necessary and appropriate to allow the trustees to administer the trust now and in future, therefore the Court approves the Deed of Variation.

Citation
[2019] NZHC 1140
Parties
Applicants / Trustees: Matthew John Sadlier; Keith Barclay Osborne; NWM Trust Management Limited as Trustees of the Cornerstone Prepaid Funeral Trust; Interested Party: Osbornes Funeral Directors Limited (New Osbornes); Director of Interested Party: Richard Fullard
Court
High Court
Jurisdiction
New Zealand
Judgment Date
23 May 2019
Procedural Posture
Originating Application Pursuant to S64 a Trustee Act 1956 (variation of Trust Deed) / Judgment (final)
Outcome
Application granted; proposed variations to the Trust Deed approved
Legal Topics
Variation of Trust Deed, Validity and Certainties of Trust, Substitution of Contracting Party Under a Trust Scheme, Perpetuities and Duration of Trusts, Trustee Appointment and Powers
Trusts Equity Civil Procedure Variation of Trust Deed Validity and Certainties of Trust Substitution of Contracting Party Under a Trust Scheme Perpetuities and Duration of Trusts Trustee Appointment and Powers

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Parties

Matthew John Sadlier; Keith Barclay Osborne; NWM Trust Management Limited as Trustees of the Cornerstone Prepaid Funeral Trust

Applicants / Trustees

Osbornes Funeral Directors Limited (New Osbornes)

Interested Party

Richard Fullard

Director of Interested Party

Procedural Posture

Originating Application Pursuant to S64 a Trustee Act 1956 (variation of Trust Deed) / Judgment (final)

Legal Issues

  1. 1 Whether the Cornerstone Prepaid Funeral Trust was validly constituted (settlor, beneficiaries, three certainties)
  2. 2 Whether the court has power to approve proposed variations to the Trust Deed under s64A Trustee Act 1956
  3. 3 Whether trustees can be empowered to substitute an original funeral company with a purchaser and to admit new companies to the scheme

Ratio Decidendi

The Trust was validly constituted (three certainties present); s64A Trustee Act 1956 empowers the Court to approve variations that enlarge trustee powers; the proposed amendments (definition of companies, substitution powers, resettlement mechanics, trustee composition and appointment/removal powers, and perpetuity clause adjustment) are consistent with the trust's purpose and are necessary and appropriate to allow the trustees to administer the trust now and in future, therefore the Court approves the Deed of Variation.

Court Disposition

Application granted; proposed variations to the Trust Deed approved

Orders

  • Approve each and all of the proposed variations and amendments to the Trust Deed as set out in the Deed of Variation of Trust annexed as exhibit D to the Trustees' joint affidavit filed in support of the application (all proposed amendments confirmed)