RE MACALISTER [2021] NZHC 3572

RE MACALISTER [2021] NZHC 3572

Because all adult beneficiaries consented via the Deed of Settlement, the proposed variation (addition of clause 5.3) did not remove any vested interest of discretionary beneficiaries, the minor beneficiaries' interests were adequately represented by their parents, the trustees had power to sell under the deed and the orders were necessary and appropriate to implement a negotiated, interdependent settlement and wind up the trust, the Court exercised its discretion under s124 and s133 to approve the variation and direct the sale and distributions as stipulated in the Deed of Settlement.

Citation
[2021] NZHC 3572
Parties
Applicant/trustee: Graeme Macdonald Macalister; Applicant/trustee: Andrew Charles Macalister; Applicant/trustee: Robert Blair Macalister; Trust: Robert Lachlan Macalister Trust
Court
High Court
Jurisdiction
New Zealand
Judgment Date
20 December 2021
Procedural Posture
Application Under Trusts Act 2019 and High Court Rules Parts 18 and 19 for Variation and Trustee Directions / Judgment on Unopposed Originating Application (on the Papers)
Outcome
Application granted: variation approved and directions given to trustees to sell property and make distributions; costs to be met from trust funds.
Legal Topics
Variation of Trust Deed, Court Approval of Trust Variation Under S124, Trustee Directions (blessing Order) Under S133, Sale of Trust Property, Representation of Minor Beneficiaries, Enforcement of Settlement
Trusts Equity Civil Procedure Variation of Trust Deed Court Approval of Trust Variation Under S124 Trustee Directions (blessing Order) Under S133 Sale of Trust Property Representation of Minor Beneficiaries +1 more

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Parties

Graeme Macdonald Macalister

Applicant/trustee

Andrew Charles Macalister

Applicant/trustee

Robert Blair Macalister

Applicant/trustee

Robert Lachlan Macalister Trust

Trust

Procedural Posture

Application Under Trusts Act 2019 and High Court Rules Parts 18 and 19 for Variation and Trustee Directions / Judgment on Unopposed Originating Application (on the Papers)

Legal Issues

  1. 1 Whether the Court should approve a variation to the trust deed to permit capital distributions in accordance with the Deed of Settlement
  2. 2 Whether the Court should approve the addition of clause 5.3 to the Deed of Trust on behalf of minor beneficiaries
  3. 3 Whether the trustees may properly sell the Blackwood Bay property and distribute proceeds in accordance with the Deed of Settlement

Ratio Decidendi

Because all adult beneficiaries consented via the Deed of Settlement, the proposed variation (addition of clause 5.3) did not remove any vested interest of discretionary beneficiaries, the minor beneficiaries' interests were adequately represented by their parents, the trustees had power to sell under the deed and the orders were necessary and appropriate to implement a negotiated, interdependent settlement and wind up the trust, the Court exercised its discretion under s124 and s133 to approve the variation and direct the sale and distributions as stipulated in the Deed of Settlement.

Court Disposition

Application granted: variation approved and directions given to trustees to sell property and make distributions; costs to be met from trust funds.

Orders

  • Approve addition of clause 5.3 to the Deed of Trust: '5.3 The Trustees may distribute all or any portion of the capital of the Trust Fund in accordance with the Deed of Settlement dated 2 August 2021' on behalf of the minor beneficiaries Vincent Omar Macalister, Leila May Macalister, Jack Edward Macalister and...
  • Direct trustees to sell the RLM Trust property at Blackwood Bay (Part Lot 8 and Lot 9-11 Deposit Plan 1071) to Richard FitzGerald Macalister on the terms of cl 4.1 of the Deed of Settlement dated 2 August 2021