COMMONS v COMMONS [2018] NZHC 2301

COMMONS v COMMONS [2018] NZHC 2301

The pleaded claim that assets held in the John and Patricia Commons Children's Trust No.1 and the Whare Kamana Trust form part of Dr Commons' estate and must be included in calculating the Remainder under cl 6.1(c) is not reasonably arguable. The testator had no unilateral testamentary power of appointment over those trust assets and the trust deeds required collective trustee exercise; clause 15.1 does not, on its language, convert already‑settled trust assets into his estate. Therefore those parts of the first cause of action were struck out. The trustees' challenge to the third cause of action was withdrawn and the allegation that paying all net income to the widow without considering...

Citation
[2018] NZHC 2301
Parties
Plaintiff (self‑represented): Andrew Hamilton John Commons; Defendant; Trustee; Beneficiary; Applicant (wills Act): Hamish John Commons; Defendant; Trustee; Beneficiary; Applicant (wills Act): Jonne Bryde Willcox; Defendant; Trustee; Beneficiary (incapacitated; Litigation Guardian Appointed): Patricia Anne Commons
Court
High Court
Jurisdiction
New Zealand
Judgment Date
4 September 2018
Procedural Posture
Wills and Estate Dispute Under Wills Act 2007 and Family Protection Act 1955; Trust Dispute / Interlocutory — Strike‑out Application (consolidated Proceedings; Case Management)
Outcome
Interlocutory judgment: parts of first cause of action struck out; strike‑out of third cause dismissed; matter to proceed on remaining issues to hearing
Legal Topics
Interpretation of Will, Power of Appointment, Trustees' Exercise of Discretion, Strike‑out for Disclosing No Reasonably Arguable Cause, Hotchpot/accounting of Earlier Distributions
Wills and Estates Trusts Civil Procedure Family Protection Interpretation of Will Power of Appointment Trustees' Exercise of Discretion Strike‑out for Disclosing No Reasonably Arguable Cause +1 more

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Parties

Andrew Hamilton John Commons

Plaintiff (self‑represented)

Hamish John Commons

Defendant; Trustee; Beneficiary; Applicant (wills Act)

Jonne Bryde Willcox

Defendant; Trustee; Beneficiary; Applicant (wills Act)

Patricia Anne Commons

Defendant; Trustee; Beneficiary (incapacitated; Litigation Guardian Appointed)

Procedural Posture

Wills and Estate Dispute Under Wills Act 2007 and Family Protection Act 1955; Trust Dispute / Interlocutory — Strike‑out Application (consolidated Proceedings; Case Management)

Legal Issues

  1. 1 Whether assets held in two discretionary trusts could be treated as part of the testator's 'estate' for distribution under clause 6.1(c) of the will
  2. 2 Whether the testator had any power of appointment or disposing power over trust assets that would bring them into his estate
  3. 3 Whether trustees' payment of all net annual income to the widow and failure to accumulate income amounted to improper exercise of powers and was reviewable

Ratio Decidendi

The pleaded claim that assets held in the John and Patricia Commons Children's Trust No.1 and the Whare Kamana Trust form part of Dr Commons' estate and must be included in calculating the Remainder under cl 6.1(c) is not reasonably arguable. The testator had no unilateral testamentary power of appointment over those trust assets and the trust deeds required collective trustee exercise; clause 15.1 does not, on its language, convert already‑settled trust assets into his estate. Therefore those parts of the first cause of action were struck out. The trustees' challenge to the third cause of action was withdrawn and the allegation that paying all net income to the widow without considering...

Court Disposition

Interlocutory judgment: parts of first cause of action struck out; strike‑out of third cause dismissed; matter to proceed on remaining issues to hearing

Orders

  • Those parts of the first cause of action which relate to assets within the John and Patricia Commons Children's Trust No.1 and the Whare Kamana Trust are struck out
  • The application to strike out the third cause of action is dismissed