EWINGTON & ANOR V SCHULZ AND ORS HC AK CIV 2008-404-6596

EWINGTON & ANOR V SCHULZ AND ORS HC AK CIV 2008-404-6596

The Court exercised its wide discretion under s64A of the Trustee Act 1956 to approve the proposed Deed of Family Arrangement because the arrangement, taken as a whole, benefits the parties, has effective informed consent from adults, adequately protects the minor and contingent/unborn beneficiaries through bespoke...

Source-derived case information.

Citation
openlaw-a15a2c6e_bed7_4036_acb1_881e218e7f17.pdf
Parties
Applicant: Kenneth Craig Ewington; Applicant: John Anderson McBridge; First Respondent: Teresita Alzate Schulz; Second Respondent: Leo Nicholas Schulz; Third Respondent: Philip Simon Schulz; Fourth Respondent: Jason Richard Schulz; Fourth Respondent: Nigel Graham Schulz; Fourth Respondent: Lisa Joanne Schulz; Fourth Respondent: Craig Anthony Schulz; Fourth Respondent (minor): Samuel Lewis Schulz
Court
High Court
Jurisdiction
New Zealand
Judgment Date
5 May 2009
Procedural Posture
Trustee Act S64/s64 a Originating Application to Approve Deed of Family Arrangement and Vary/revoke Will Trust / Judgment on Originating Application (hearing 30 March 2009; Judgment 5 May 2009)
Outcome
Application granted. Proposed Deed of Family Arrangement approved and powers conferred on applicants under s64(1) and s64A Trustee Act 1956.
Legal Topics
Variation of Trusts, Deed of Family Arrangement, Minor's Interests, Unborn Beneficiaries, Trustees' Powers, Construction of Wills (meaning of 'survive')
Trusts Succession Probate Equity Family Arrangements Variation of Trusts Deed of Family Arrangement Minor's Interests +3 more

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Parties

Kenneth Craig Ewington

Applicant

John Anderson McBridge

Applicant

Teresita Alzate Schulz

First Respondent

Leo Nicholas Schulz

Second Respondent

Philip Simon Schulz

Third Respondent

Jason Richard Schulz

Fourth Respondent

Nigel Graham Schulz

Fourth Respondent

Lisa Joanne Schulz

Fourth Respondent

Craig Anthony Schulz

Fourth Respondent

Samuel Lewis Schulz

Fourth Respondent (minor)

Procedural Posture

Trustee Act S64/s64 a Originating Application to Approve Deed of Family Arrangement and Vary/revoke Will Trust / Judgment on Originating Application (hearing 30 March 2009; Judgment 5 May 2009)

Legal Issues

  1. 1 Whether the Court should approve a Deed of Family Arrangement under s64A on behalf of a minor and contingent/unborn beneficiaries
  2. 2 Whether clause 5(d)(iv) of the will creates interests that do not vest until the life tenant's death and thus prevent immediate distribution
  3. 3 Whether the proposed trust arrangements adequately protect contingent interests of children of Leo and Philip including those born after the testator's death

Ratio Decidendi

The Court exercised its wide discretion under s64A of the Trustee Act 1956 to approve the proposed Deed of Family Arrangement because the arrangement, taken as a whole, benefits the parties, has effective informed consent from adults, adequately protects the minor and contingent/unborn beneficiaries through bespoke trust arrangements, and the construction of the will (ordinary meaning of 'survive') did not require withholding distribution until the life tenant's death.

Court Disposition

Application granted. Proposed Deed of Family Arrangement approved and powers conferred on applicants under s64(1) and s64A Trustee Act 1956.

Orders

  • Approve pursuant to section 64A Trustee Act 1956 the proposed Deed of Family Arrangement regarding the estate of John Schulz, to be executed by the applicants and respondents on behalf of the fourth respondent Samuel Lewis Schulz (a minor) and on behalf of any children of the second or third respondents who might...
  • Confer on the applicants pursuant to section 64(1) Trustee Act 1956 the power to pay the fourth respondents Jason Richard Schulz, Nigel Graham Schulz, Lisa Joanne Schulz and Craig Anthony Schulz their respective shares as set out in the proposed Deed of Family Arrangement