MARSH AND ORS V MARSH AND ORS HC DUN CIV 2006-412-000041

MARSH AND ORS V MARSH AND ORS HC DUN CIV 2006-412-000041

The court granted approval because the proposed amendments (including adding adopted children to the beneficiary class, permitting limited beneficiary nominations to another trust, adopting majority trustee decision‑making and tailored liability relief) were for the welfare of the family, did not significantly dilute the beneficiary pool, contained safeguards preventing immediate distribution outside the beneficiary pool, and fell within the court's power under s64A to approve arrangements for minors and unborn beneficiaries.

Citation
openlaw-58731047_4819_4e58_99c4_579841ac6054.pdf
Parties
Plaintiff: Graeme James Marsh; Plaintiff: Eunice Marsh; Plaintiff: William John Marsh; Plaintiff: Roger Norman Macassey; Defendant: Eunice Marsh; Defendant: Susan Enid Mackinlay; Defendant: William John Marsh; Defendant: Jillian Elizabeth Callon; Defendant: David Graeme Mackinlay; Defendant: Jessica Susan Mackinlay
Court
High Court
Jurisdiction
New Zealand
Judgment Date
21 March 2006
Procedural Posture
Trust Variation Application (silveracres Trust) / Judgment (application Granted)
Outcome
Application granted in terms of the draft order; draft order may be sealed.
Legal Topics
Variation of Trust, Court Approval for Minors and Unborn Beneficiaries Under S64 a, Beneficiary Class Extension to Include Adopted Children, Trustee Decision‑making and Liability Relief, Nominations to Distribute to Another Trust
Trusts Estates and Succession Family Law Variation of Trust Court Approval for Minors and Unborn Beneficiaries Under S64 a Beneficiary Class Extension to Include Adopted Children Trustee Decision‑making and Liability Relief Nominations to Distribute to Another Trust

Case Brief

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Parties

Graeme James Marsh

Plaintiff

Eunice Marsh

Plaintiff

William John Marsh

Plaintiff

Roger Norman Macassey

Plaintiff

Eunice Marsh

Defendant

Susan Enid Mackinlay

Defendant

William John Marsh

Defendant

Jillian Elizabeth Callon

Defendant

David Graeme Mackinlay

Defendant

Jessica Susan Mackinlay

Defendant

Procedural Posture

Trust Variation Application (silveracres Trust) / Judgment (application Granted)

Legal Issues

  1. 1 Whether the court should approve the proposed trust variation including extension of beneficiary class to adopted children
  2. 2 Whether the court should approve arrangements on behalf of minors and unborn persons under s64A Trustee Act 1956
  3. 3 Whether a beneficiary nomination to direct distributions to another trust is permissible

Ratio Decidendi

The court granted approval because the proposed amendments (including adding adopted children to the beneficiary class, permitting limited beneficiary nominations to another trust, adopting majority trustee decision‑making and tailored liability relief) were for the welfare of the family, did not significantly dilute the beneficiary pool, contained safeguards preventing immediate distribution outside the beneficiary pool, and fell within the court's power under s64A to approve arrangements for minors and unborn beneficiaries.

Court Disposition

Application granted in terms of the draft order; draft order may be sealed.

Orders

  • Application granted and trust variation approved in the terms of the draft order attached to the judgment
  • Order approving arrangements on behalf of minors and unborn persons pursuant to s 64A Trustee Act 1956