RE HUGH GREEN TRUSTS [2021] NZHC 2184

RE HUGH GREEN TRUSTS [2021] NZHC 2184

The Court granted s 133 directions and s 124 consent because the trustees had clearly formed the relevant opinions and taken authorized steps; a reasonable body of trustees could properly have reached the same conclusions; no conflict of interest vitiated decisions; the proposed variation and restructure, considered as a whole, advanced settlorial philanthropic intentions, promoted family equality and long‑term asset preservation, and any detriment to potential unborn/minor beneficiaries was remote and outweighed by tangible and intangible benefits, with unanimous consent of known beneficiaries supporting the exercise of discretion.

Citation
[2021] NZHC 2184
Parties
First Plaintiffs Trustees of the Hugh Green Trust: Trustees of the Hugh Green Trust; Second Plaintiffs Trustees of the Hugh Green Property Trust: Trustees of the Hugh Green Property Trust; Respondent Beneficiary and Surviving Spouse: Moira Ellen Green; Respondents Grandchildren of Hugh and Moira Green (via John Green): Grandchildren via John Green; Respondents Grandchildren of Hugh and Moira Green (via Gerard Green): Grandchildren via Gerard Green; Respondent Family Member: Eamonn Paul Green; Respondent Child of Settlors and Beneficiary: Frances Kathleen Green; Respondents Grandchildren of Hugh and Moira Green (via Frances Green): Grandchildren via Frances Green; Represented Class Theoretical Future or Unascertained Beneficiaries: Unknown, unborn and minor beneficiaries; Respondent Child of Settlors and Beneficiary: John Patrick Green; Respondent Family Member and Beneficiary: Gerard Joseph Buckley Green
Court
High Court
Jurisdiction
New Zealand
Judgment Date
24 August 2021
Procedural Posture
Application Under the Trusts Act 2019 for Directions and Court Consent / High Court Hearing and Judgment (application for S 133 Directions and S 124 Consent)
Outcome
Application granted: s 133 directions made and s 124 consent granted on behalf of unborn/future grandchildren (excluding any child of Maryanne Green); no costs order
Legal Topics
Variation of Trust Deeds, Court Consent for Unborn and Unascertained Beneficiaries, Trustees' Powers and Directions (s 133), Consent Under S 124 for Minors and Unborn, Trust Restructure and Amalgamation, Per Stirpes Distributions, Philanthropic/foundation Appointments
Trusts Charity Law Equity Civil Procedure Variation of Trust Deeds Court Consent for Unborn and Unascertained Beneficiaries Trustees' Powers and Directions (s 133) Consent Under S 124 for Minors and Unborn +3 more

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Parties

Trustees of the Hugh Green Trust

First Plaintiffs Trustees of the Hugh Green Trust

Trustees of the Hugh Green Property Trust

Second Plaintiffs Trustees of the Hugh Green Property Trust

Moira Ellen Green

Respondent Beneficiary and Surviving Spouse

Grandchildren via John Green

Respondents Grandchildren of Hugh and Moira Green (via John Green)

Grandchildren via Gerard Green

Respondents Grandchildren of Hugh and Moira Green (via Gerard Green)

Eamonn Paul Green

Respondent Family Member

Frances Kathleen Green

Respondent Child of Settlors and Beneficiary

Grandchildren via Frances Green

Respondents Grandchildren of Hugh and Moira Green (via Frances Green)

Unknown, unborn and minor beneficiaries

Represented Class Theoretical Future or Unascertained Beneficiaries

John Patrick Green

Respondent Child of Settlors and Beneficiary

Gerard Joseph Buckley Green

Respondent Family Member and Beneficiary

Procedural Posture

Application Under the Trusts Act 2019 for Directions and Court Consent / High Court Hearing and Judgment (application for S 133 Directions and S 124 Consent)

Legal Issues

  1. 1 Whether s 133 directions should be given confirming trustees' decisions to implement the proposed restructure
  2. 2 Whether the Court should consent under s 124 to the HGT deed variation on behalf of unknown, unborn and minor beneficiaries
  3. 3 Whether the trustees' decisions were within their powers and a reasonable exercise of those powers

Ratio Decidendi

The Court granted s 133 directions and s 124 consent because the trustees had clearly formed the relevant opinions and taken authorized steps; a reasonable body of trustees could properly have reached the same conclusions; no conflict of interest vitiated decisions; the proposed variation and restructure, considered as a whole, advanced settlorial philanthropic intentions, promoted family equality and long‑term asset preservation, and any detriment to potential unborn/minor beneficiaries was remote and outweighed by tangible and intangible benefits, with unanimous consent of known beneficiaries supporting the exercise of discretion.

Court Disposition

Application granted: s 133 directions made and s 124 consent granted on behalf of unborn/future grandchildren (excluding any child of Maryanne Green); no costs order

Orders

  • Order under s 133 confirming HGT trustees' decisions to enter the Deed of Family Arrangement and Deed of Variation and to implement the restructure as proper exercises of their powers under the HGT
  • Order under s 133 confirming HGPT trustees' decisions to enter the Deed of Family Arrangement and Deed of Appointment and Exclusion and to implement the restructure as proper exercises of their powers under the HGPT deed