DAVIS AND ANOR v MINNIE BEATRICE WHITE [2016] NZHC 1626

DAVIS AND ANOR v MINNIE BEATRICE WHITE [2016] NZHC 1626 [18 July 2016]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2015-404-1227[2016] NZHC 1626BETWEEN ALEXANDER JAMES DAVIS ANDBRUCE CYRIL MCNIECE ASTRUSTEES OF THE REX WHITEFAMILY TRUSTApplicantsAND MINNIE BEATRICE WHITERespondentHearing: 23, 24 May 2016Appearances: K F Gould for ApplicantsD M OʼNeil for RespondentJudgment: 18 July 2016JUDGMENT OF PAUL DAVISON JThis judgment was delivered by me on 18 July 2016 at 4.15 pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors:B C McNiece, AucklandBrowne Linkenbagh Legal Services, New South Wales, AustraliaIntroduction[1] This is an application to the Court for directions pursuant to s 66 of the Trustee Act 1956 by which the applicants, as trustees of the Rex White Family Trust (the RWFT), seek an order that they may exercise their absolute and uncontrolled discretion as trustees to pay the whole of the RWFT fund to a charity, namely Freemasons New Zealand.[2] The respondent, Mrs White, is the wife of the late Rex White. She is opposed to the making of the orders sought and claims that she is in fact the primary beneficiary, and thus entitled to the trust capital. She seeks an order that she is to receive the entire trust fund.[3] While both the applicants and the respondent agree that the RWFT was validly created and subsists, nevertheless the deed by which the late Rex White established the trust in 1992 has for some time been lost. Apart from an unexecuted draft copy of the RWFT deed (the draft deed), there is no other written record of the terms of the executed deed of trust. As a consequence, the trustees are unable to refer to the executed deed (the RWFT deed) in order to determine the relevant terms, and specifically, the provisions of the trust as regards beneficiaries and the ultimate beneficiary.[4] Accordingly, the real and more fundamental issue that I must decide arising from this application is whether the RWFT presently exists as a valid and subsisting trust, or whether by reason of the loss of the RWFT deed and an absence of other reliable evidence of its terms, it fails for uncertainty.Background[5] Rex White and Mrs White met in 1962 when he was working as a radio officer with the Union Steamship Company. Mrs White was in New Zealand on a working holiday at the time. In 1963, they moved to Australia where they lived together in a de facto marriage relationship. They were married in Australia on 12January 1984, and thereafter continued to live together there until Rex White died on 23 November 2001.[6] Although Rex White had a son, Christopher, from a prior marriage, he and Mrs White did not themselves have any children together.[7] Mrs White is now 88 years old and continues to reside in Australia.Rex White's will[8] Rex White made a will which was executed and dated 2 August 1991. His will was prepared by the applicant, Mr Bruce Cyril McNiece (Mr McNiece), when he was then in legal practice with the firm Buddle Findlay.[9] In his will, Rex White appointed Mr McNiece as his sole executor and trustee, and he bequeathed the whole of his residuary estate to Mrs White, with the provision that should she predecease him, the estate would go to his son, Christopher.1[10] Rex White was a Freemason, and by his will, he directed that he be buried under the Masonic rite. At the time he was engaged by Rex White to prepare his will, Mr McNiece was also a Freemason.2 The second applicant and co-trustee, Mr Alexander James Davis (Mr Davis), was and is also a Freemason. Their common membership of the Freemasons is relevant to the applicants' explanation for holdingthe capital of the RWFT for subsequent distribution to Freemasons New Zealand,1 Two copies of this will were produced to the Court, one of which had a deletion of the provision directing that Christopher should inherit his father's residuary estate in the event that Mrs White predeceased her husband. The deletion appears to have been initialled by Rex White. MrMcNiece's evidence was that he had reviewed the grant of probate prior to attending Court to give evidence, and his recollection was that the will attached to the grant of probate did not have the deletion of the words which provided for Christopher to become the beneficiary in the event that Mrs White predeceased her husband. Nothing decided by this judgment turns on this discrepancy between the two versions of Rex White's will, although the fact that he appears to have himself modified the provision regarding Christopher, I consider to be of some relevance to the issue of the reliability of the draft deed as representing what he eventually executed as the RWFT deed, as it is an indication of the likelihood that Rex White would have similarly reviewed the draft deed before the RWFT deed was finalised.2 I am informed by means of a Memorandum filed by counsel for the applicants following the hearing, that Mr McNiece was a member of the Freemasons between 1988 to 1995.and to their application for an order that they may exercise an absolute discretion to do so.The Rex White Family Trust (RWFT)[11] In 1992, Rex White instructed Mr McNiece to prepare a deed of family trust, and at the same time, a deed of acknowledgment of debt.[12] At that time, Rex White's mother had recently died and, as a beneficiary ofher estate, he had received the proceeds from the sale of her home. It appears that hewished to put the money from his mother's estate into a trust to be formed and to benamed the Rex White Family Trust.[13] Acting on Rex White's instructions, Mr McNiece prepared a draft deed of trust (the draft deed) and deed of acknowledgement of debt.[14] By letter dated 1 May 1992, Mr McNiece sent both documents to Rex White in Australia, together with instructions as to the execution of the deed of acknowledgement of debt.3[15] While it is not clear from the evidence whether the deed of acknowledgement of debt was in fact ever executed by Rex White, it is apparent from the document itself that, before being sent to Rex White, it had been executed by both Mr McNiece and Mr Davis as trustees of the RWFT.[16] Importantly, the deed of acknowledgment of debt records a debt by the trustees of the RWFT to Rex White in the sum of $142,000, being the money that hehad obtained from his late mother's estate and which he had or was intending toadvance to the applicants as trustees of the RWFT on terms requiring them to repay the debt upon demand.3 The deed of acknowledgement of debt produced in evidence was located by Mrs White amongsther husband's papers shortly following his death in November 2001. It was found together with a copy of the draft deed and a letter from Mr McNiece addressed to Rex White dated 1 May 1992, which referred to enclosing a deed of trust, and deed of acknowledgement of debt, and which contained instruction as to the need for the deed of acknowledgement of debt to be executed by Rex White and witnessed.[17] Rex White did not tell Mrs White of his intention to establish a family trust, and consequently, she had no knowledge of it whatsoever until after Rex's death in November 2001, some nine years later, when she was informed by Mr McNiece of the existence of the RWFT.The administration of the trust following Rex White's death in November 2001[18] Over the years following Rex White's death, Mr McNiece, apparently without reference to a copy of the RWFT deed, continued to administer the RWFTand manage its investments in mortgages made through his firm's solicitor'snominee company,4 and applied the income from the trust capital by making distributions to Mrs White.[19] As already noted, Mrs White knew nothing of the existence of the RWFTuntil she received Mr McNiece's letter dated 4 December 2001. In this letter, Mr McNiece enclosed a copy of Rex White's will and asked her to provide him withdetails of her income other than the Australian government pension she was receiving, advising her not to include any monies that she would receive from the RWFT.[20] In subsequent correspondence, Mr McNiece advised Mrs White that he was in the process of obtaining probate of Rex White's will in New Zealand, saying thathe would arrange for a legal colleague of his in Sydney, Mr Paul Ward-Harvey (Mr Ward-Harvey), to attend upon her to swear her affidavit in support of the application for the grant of probate.[21] Mr McNiece said that Mr Ward-Harvey would also advise him as to any legalrequirements relating to Mrs White's Australian government pension so that he couldthen maximise the benefits that Mrs White would obtain from the RWFT.[22] Mr McNiece informed Mr Ward-Harvey that the RWFT had approximately$206,000 and that Rex White's estate held $71,000. He said that the combinedincome from the trust and the estate would be approximately $20,775 gross per4 B.C. McNiece Solicitors Nominee Company Ltd.annum, and Mrs White should anticipate receiving approximately $12,000 per annum from the trust. He also said that there would be funds available to her from the trust to enable her to purchase a new car. Mr Ward-Harvey passed this information on to Mrs White.[23] Mrs White also met with Mr Ward-Harvey in October 2002, and subsequently by letter dated 15 October 2002, Mr Ward-Harvey reported to Mr McNiece that he had seen her, and by reference to documentation provided by Mr McNiece, explained and made it clear to her that she was the sole beneficiary of the New Zealand assets.[24] Mr Ward-Harvey informed Mr McNiece that apart from asking for somemoney initially, Mrs White's instructions were that she did not wish to realise orchange the arrangements as regards the New Zealand assets at all, and that she simply asked that she receive quarterly payments of income.[25] With his letter, Mr Ward-Harvey enclosed some papers he had been given byMrs White in response to Mr McNiece's request that she look for a copy of theRWFT deed amongst Rex White's papers, commenting that the documents appearedto relate to the trust but did not include a copy of the RWFT deed. Significantly, Mr McNiece did not respond to Mr Ward-Harvey to take issue with or correct him as regards the information he had given to Mrs White to the effect that she was the sole beneficiary of the New Zealand assets.[26] Then on 5 November 2002, Mr McNiece wrote directly to Mrs White toreport on progress with Rex White's estate. In this letter, he confirmed having attended to all matters necessary for the administration of Rex White's estate and reported that all of Rex White's assets had been transferred into her name. Headvised that he had transferred AUD$21,000 to her account, and that each quarter thereafter, he would forward the interest earned by the trust and the estate to her Australian bank account. He explained that in order to keep within the qualifying criteria for her Australian pension with regard to both capital and income, heproposed retaining the trust monies in the trust, while Rex White's estate moneywould be transferred into her name by way of the distribution of the estate. In his letter, Mr McNiece said:As Mr Ward-Harvey has explained to you all of the assets in the trust and the estate are effectively yours. You should give some consideration as to what you wish to happen to those assets on your death by making a will and could I suggest that you either contact me or Mr Ward-Harvey in that regard. (emphasis added)[27] This advice by Mr McNiece to Mrs White – that all of the assets in the trustand the estate were "effectively yours" – demonstrates that Mr McNiece was at that time proceeding upon the clear understanding and belief that Mrs White was the sole beneficiary of the RWFT, and that accordingly, she was entitled to receive all of the income derived from the trust assets as well as being the beneficial owner of the trust capital. In my view, there can be no other satisfactory explanation for Mr McNiece advising her to give consideration to making her own will, and what she wished to happen to those assets on her death. Mr McNiece's understanding to that effect isconsistent with what Mr Ward-Harvey had also explained to Mrs White in October 2002, and his understanding was necessarily based on what he had been told by Mr McNiece.[28] On 18 November 2002, Mr Ward-Harvey made a contemporaneous handwritten note of a telephone conversation he had with Mr McNiece that day. Hewrote his note on a copy of Mr McNiece's letter to Mrs White of 5 November 2002.Mr Ward-Harvey wrote:P W-H spoke to Mr McNiece on 18/11.Estate money $55,000 to be transferred into trust to = $235,000 approxIncome tax will be paid at trust rates on income from the trustquarterly payments to BW will be post tax and free of tax in NZ & Australiaquarterly instalments will probably vary but average $2,800 per qtr.[29] From Mr Ward-Harvey's file note of the conversation with Mr McNiece, it isclear that, consistent with the advice he had earlier given to Mrs White, the assets of the trust and her husband's estate were "effectively" hers. Mr McNiece was himself proceeding on the basis that all of the assets of the RWFT were being held for her,and that being the case, it was convenient and appropriate to amalgamate the balanceof the money to which she was entitled from Rex White's estate by paying it into the trust to be administered as a composite sum. Thereafter, the income from the approximate total of $235,000 would incur income tax at the trust rate, and the net income would be paid to Mrs White on a tax-paid basis.[30] On the basis of what she was told and advised about all of the assets belonging to her, Mrs White agreed that the sum of $55,000 (being the sum that shewould otherwise receive from her husband's estate) could be transferred to theRWFT to be managed and administered together with the other trust monies.[31] Mr McNiece thereupon proceeded to administer the RWFT in the manner described above, namely, by arranging to pay the net tax paid income derived from investment of the trust funds to Mrs White by way of quarterly distributions to her Australian bank account.[32] As well as distributing tax-paid income, Mr McNiece, as trustee of the RWFT, also made several capital distributions to Mrs White upon request. For example in January 2013, Mrs White telephoned Mr McNiece and asked him to arrange for the trust to meet the cost of her surgical expenses, and in July 2013, he transferred the sum of NZ$34,000 to her to meet those expenses.A new attitude by the trustees and a new interpretation of the terms of the executed deed emerges[33] On 13 December 2011, Mrs White telephoned Mr McNiece to request a distribution of money to pay for an overseas holiday. She said in her evidence that she explained to Mr McNiece she was suffering from macular degeneration, and wished to travel and enjoy an overseas trip before her eyesight deteriorated. She told Mr McNiece that she wished to use some of the money to pay for a friend of hers to accompany and assist her.[34] Mrs White said in evidence that when she mentioned that she was suffering from macular degeneration, Mr McNiece's response was to say "who told you that?"She said that up until then, Mr McNiece had always been very polite in his dealings with her and had never spoken to her in that manner before.[35] She said that Mr McNiece adopted a different attitude towards her from that time, and although he subsequently provided the funds for the cost of her hip replacement in 2013 when she initially asked in January 2013, he said that the funds were unavailable at that time but could become available in June later that year.[36] Mr McNiece said in his evidence that he remembered the telephone call from Mrs White when she wanted money for an overseas trip. He said that he understood that she was also wanting money to pay for her niece to accompany her on the trip. He said that he had discussed her request with Mr Davis, and they decided to refuseto pay for Mrs White's niece's fare because it would have been contrary to Rex White's wishes as he had not wanted any of Mrs White's family members to benefitfrom the trust monies.[37] Mr McNiece said in evidence under cross-examination that at the time, hehad in fact doubted the accuracy of Mrs White's claim to be suffering from maculardegeneration, thinking that it was merely a means of the nieces manipulating matters and wanting to utilise some of the trust funds for their own purposes.[38] Mrs White was also cross-examined regarding her request for funds, and said that at no time had she referred to any of her nieces when speaking to Mr McNiece. She had only ever referred to a friend of hers whom she wished to accompany her.[39] Whatever be the correct position, having seen and heard both of them give evidence before me and be cross-examined, I am satisfied that Mrs White's evidence that Mr McNiece's attitude towards her changed and hardened at this time, is an accurate and reliable description of what had happened. Such a change of attitude is consistent with Mr McNiece conferring with Mr Davis and then deciding that RexWhite's wishes, as expressed to Mr Davis before the establishment of the RWFT, were relevant to and should inform their decisions as trustees as to application and distribution of the trust money and particularly, the trust capital.[40] In June 2014, Mrs White consulted a firm of solicitors in New South Wales about her estate planning, and on 2 June 2014, Mr Darryl Browne of Browne Linkenbagh wrote to Mr McNiece to request a copy of the RWFT deed and other information regarding the income and capital beneficiaries of the trust. Mr Browne advised that Mrs White would prefer the RWFT to be finalised with the funds paid to her, saying:In this context I would appreciate an indication of your position with a vesting of the trust fund at this point and payment thereout to Beatrice as sole capital beneficiary.[41] Mr McNiece replied to Mr Browne by letter dated 1 July 2014, advising that the RWFT deed had been lost. He said that Mrs White was merely a discretionary beneficiary and not a final beneficiary, and as such, she was not entitled to any capital of the trust (although some capital had previously been distributed to her to pay some medical expenses).[42] He explained that there was power under the general provisions of the RWFTdeed to make a capital distribution to "various charities". Mr McNiece wrote:The writer has conferred with his co-trustee and re-established that it was the settlors (sic) intention that Beatrice was not to receive any capital of thetrust as he did not want monies to eventually go to Mrs White's family buthe did wish her to receive the income from the capital. Upon Mrs White'sdeath it was the settlors (sic) intention that the monies be distributedamongst various charities and there is provision in the trust deed for that to be done. The settlor also had a son whom he also did not wish to benefit from any capital distribution of the trust. (emphasis added)[43] It is noteworthy that in this letter, Mr McNiece referred to the settlor's intention that the trust monies be distributed amongst "various charities". Mr McNiece was cross-examined on this point and it was suggested to him that byreferring to "various charities" in his letter, he had been seeking to conceal from Mr Browne and Mrs White, whom the ultimate and final beneficiary of the trust was intended to be.[44] I consider Mr McNiece's response in which he explained that at the time of his letter dated 1 July 2014, the trustees had not yet made a decision to make a distribution to Freemasons New Zealand, to be unsatisfactory and implausible. Hisuse of the words "various charities" is a clear indication that he was intending to obscure the intention on the part of the trustees to apply the trust monies by way of a distribution to Freemasons New Zealand, and that the decision to do so had recently arisen from his conferring with Mr Davis which had "re-established the settlors (sic) intention".[45] In a later letter to Mr Browne dated 24 September 2014, Mr McNiece enclosed a legal opinion he had obtained from counsel Mr Kevin Gould, dated 7 July 2014. In it Mr Gould expressed his view as to whether the applicant trustees hadpower to distribute the whole of the trust fund to the Masonic Lodge "as nominated by Mr White/Mr Ellis". The reference by Mr Gould to "Mr White/Mr Ellis" is anindication of some uncertainty on the part of Mr McNiece in terms of his instructionsas to who the settlor of the RWFT actually was.[46] Mr Gould's opinion, which was forwarded to Mr Browne, was the first mention of Freemasons New Zealand as a potential beneficiary of the RWFT, and the first indication that the trustees, rather than holding the trust assets for distributionamongst "various charities", were proceeding upon the basis of holding the trust funds for subsequent distribution to the Masonic Lodge. It was also the first indication that the trustees were operating on the basis that Rex White's wish wasthat the Masonic Lodge should be the final beneficiary of the trust rather than Mrs White.[47] Having regard to the significant change of position adopted by the applicants in 2014, it is of note that this only arose after Mrs White, through her solicitors, had requested all of the trust money, which included her own estate funds, be paid to her.[48] As regards the trustees' "re-establishment" of what Rex White's intention waswhen establishing the RWFT, it is relevant to note Mr Davis's evidence as to the source of his knowledge of Rex White's wish to leave his money to Freemasons NewZealand. Mr Davis said in evidence that on two occasions, he had been told by Rex White that unless his wife needed his money, he wanted it to go to Freemasons New Zealand. Mr Davis said these conversations occurred in 1986 and 1989. Of course, at that time, the RWFT did not exist, and Rex White was yet to make his will.[49] When he eventually did make his will in August 1991, he left all of his estate to his wife, with the provision that, should she predecease him, his estate would pass to his son Christopher. Contrary to what Mr Davis said he was told by Rex White, Rex White in fact made no reference whatsoever in his will to Freemasons New Zealand and no provision for that organisation to benefit from his estate.[50] Furthermore, I note that in describing the events surrounding the meeting atMr McNiece's office at which the RWFT deed was executed in 1992, Mr Davis said that he did not recall Rex White mentioning the Freemasons on that occasion in any way.[51] Thus it would appear that any reconsideration or re-establishment of whatRex White's wishes or intentions were as regards the RWFT could not possibly havebeen based upon anything he said at the time that the RWFT deed was executed in 1992. His only statements as described by Mr Davis had been made well prior to the establishment of the RWFT and, in the meantime, he had made his will on terms which are demonstrably inconsistent with any earlier statements.[52] Accordingly, I am of the view that there could never have been any proper foundation for the position adopted by the applicants in 2014, when they claimed tobe acting in accordance with Rex White's intentions to benefit the Freemasons New Zealand.[53] What is clear, however, from the emergence of this new attitude on the part of the applicants is that they and in particular, Mr McNiece, were relying on the wording of the draft deed as accurately and reliably containing the terms of the RWFT deed that they were responsible for. Of course, in the absence of the RWFT deed, there was no other document to which the applicants could refer as a source of the requisite information necessary to inform their decisions as trustees. In this regard, I note that in the course of his evidence Mr McNiece confirmed that he was basing his understanding and knowledge of the terms of the RWFT deed and the identity of the beneficiaries solely on the contents of the draft deed. He claims no independent recollection of the contents of the RWFT deed, other than what he deduced from the contents and provisions of the draft deed.[54] If the draft deed is be considered as substantially embodying the same terms as were included in the RWFT deed, then the absence of any reference to Freemasons New Zealand as a discretionary or primary beneficiary, is an indication that any reliance upon the draft deed cannot provide any certainty as to the objects of the trust.The executed RWFT deed[55] As I have noted, the deed by which Rex White established the RWFT has been misplaced and lost. From the following evidence and the events described therein, I am satisfied that a deed creating the RWFT was in fact executed in 1992.Execution of the RWFT deed[56] Mr Davis was, together with Mr McNiece, named in the draft deed and in the deed of acknowledgement of debt, as a trustee of the RWFT.5 He gave evidence by way of affidavit and was cross-examined before me. He described attending ameeting at Mr McNiece's office in 1992, which he attended together with Rex White, for the purpose of executing a deed to establish the RWFT. Mr Graeme Ellis (Mr Ellis), who is named as the settlor in the draft deed, was not present at this meeting.[57] Mr Davis said that he saw the final version of the deed for the first time at the meeting, and had not previously seen a copy of it. He said that he had only read it over very quickly and briefly in order to satisfy himself that it was the deed he was expecting to sign. He explained that he had relied on Mr McNiece to have prepared the deed correctly, and said that he cannot recall there being any detailed discussion at the meeting regarding the contents of the RWFT deed.[58] He also said that he has not since been given a copy of the RWFT deed, and had never had a copy of it.5 Mr Davis had known Rex White for some 15 years and after meeting him, had discovered that they were in fact related. Mr Davis is, as I have noted earlier, a member of the Freemasons in New Zealand, and he and Mr White attended meetings of the Freemasons together.[59] Mr Davis said that since the RWFT was established, he has relied on Mr McNiece to administer and manage the trust and to involve him as necessary, which he did.[60] Mr Davis said that Mr McNiece routinely used him as Rex White's agent inNew Zealand during Rex White's life, and that he had continued this role after Rex White's death. As trustee, Mr Davis explained that he had executed writteninvestment authorities as and when required by Mr McNiece, and that Mr McNiece had provided him with copies of documents relating to investments made by the trust, but that he had never seen the RWFT deed since its execution.Efforts at locating and obtaining the (lost) deed[61] Mr McNiece gave evidence by way of two affidavits and was cross-examined before me.[62] He explained that when the RWFT deed was executed in 1992, as well as filing a copy of the deed with the Inland Revenue Department (the IRD),6 he had placed a copy on his file to refer to as required.[63] He said that over the years, he created further volumes of the RWFT file and is currently up to file number 4. He said file number 1 was destroyed some seven years after he had put it into storage when it had ceased to be current, and he had opened another file. He further explained that although his usual practice is to review files before they are destroyed, he sometimes delegates this function to his staff and, as a consequence, the number 1 file had been destroyed.[64] He said the first time he had realised that he no longer held the RWFT deed or any copy of it was shortly after Rex White's death in 2001. By that time, the trusthad been in existence for nine years, and that apart from filing annual tax returns on behalf of the trust in respect of income derived from mortgage investments, there6 He forwarded an original executed counterpart to the order to obtain a tax number, which waslater allocated as "IRD 59-288-288". Mr McNiece also explained that each year following theestablishment of the trust, he has filed tax returns with the IRD for and on behalf of the trust.would appear to have been little or no need for Mr McNiece to refer to the deed either as to trustee powers or the provisions detailing and defining the beneficiaries.[65] As consequence of the destruction of file number 1, all or any file notes and copies of correspondence relating to communications to or from Rex White regarding the formation of the RWFT that might inform the issues before the Court on this application no longer exist.[66] Soon after Rex White's death, Mr McNiece wrote to Mrs White by letterdated 21 February 2002, in which he enquired whether she had found a copy of the RWFT deed amongst her husband's effects. She had not.7[67] In an attempt to locate a copy, Mr McNiece wrote to the IRD on 4 June 2014 requesting a copy of the RWFT deed that he had earlier filed. The IRD responded in writing advising that it does not hold a copy of it.Finding/conclusion[68] From this history of events, I am satisfied that a deed of trust was executed in 19928 creating and establishing the RWFT.[69] The real issue, then, is whether the Court can be satisfied that the RWFT still subsists.[70] In order for a valid trust to be created and exist, three certainties must be present and satisfied.9 They are:(a) Certainty of intention:10 a court cannot hold that a trust exists unless it is satisfied that there was an intention to create the trust.7 But she did find a copy of the draft deed, the deed of acknowledgment of debt and MrMcNiece's letter dated 1 May 1992.8 The date upon which the trust was created cannot be determined or ascertained with the result that the vesting date of the trust cannot be ascertained with certainty.9 In addition to the three certainties, the law requires that he objects of the trust must be lawful and any formalities required by law for constituting the trust must have been complied with. There is no issue with this point.10 See Re Reynolds; Official Assignee v Wilson [2008] 3 NZLR 45, [2008] NZCA 122.(b) Certainty of subject matter: the property of a trust must be clearly ascertainable. The subject matter of a trust must be in existence when the trust is declared.(c) Certainty of objects: the identity of beneficiaries of the trust must be certain. At the least, there must be specified criteria that enable the trustees to say whether a particular person is or is not a beneficiary (category certainty). In the case of a discretionary trust what is required is conceptual certainty, that is a sufficient degree of precision to enable the limits of the class to be ascertained. Evidential uncertainty does not mean that the necessary subject matter certainly does not exist.11[71] The essence of this case turns on the certainty of objects. If there is any uncertainty in this respect, the trust fails and those persons to whom the property is given in trust will hold it on a resulting trust.Does the RWFT currently possess the three certainties enabling the trustees to discharge their obligations?[72] In the present case, as I have already said, I consider that it is more likely that Rex White, for the reasons I shall outline below, was the settlor of the RWFT and not Mr Ellis. Furthermore, I am satisfied that Rex White intended to create a trust to be called the Rex White Family Trust when he instructed Mr McNiece in 1992 to prepare a deed, and I am also satisfied that a deed was executed and the intention was therefore put into effect.[73] I am similarly satisfied as to the subject matter of the RWFT. Rex White transferred approximately $142,000 to the applicants at about the time that the RWFT deed was executed. The applicants thereupon received and have since held that money together with any accumulated income upon trust as trustees of the RWFT, and initially at least, upon the terms set out in the draft deed.11 Proprietors of Wahatu Inc v Attorney-General [2012] NZHC 1461 at [219].[74] It is the third certainty that calls for close examination by reason of the background and circumstances of this present application.The certainty of objects[75] Here, with the RWFT deed no longer available by virtue of it being lost, the parties rely upon the draft deed as sufficiently evidencing the requisite certainty of objects. The applicants also rely upon the evidence of Mr Davis, to the effect that Rex White clearly informed him on two occasions of his wish and intention that the ultimate beneficiary of the trust should be Freemasons New Zealand. Mr McNiece also refers in his affidavit evidence to having been told by Rex White of his wish to see the trust capital be distributed to Freemasons New Zealand, but unlike Mr Davis, he cannot identify a particular occasion when he was informed of this, and it appears that he is relying on what Mr Davis has said he was told by Rex White, rather than any direct conversation he himself had with him.[76] Mr O'Neill for the respondent refers to two Australian cases dealing with situations of lost trust deeds. In Porlock Pty Ltd, 12 the plaintiff trustee applied to the Court for directions under s 63 of the Trustee Act 1925 seeking judicial advice because the trust deed could not be located. The Supreme Court of New South Wales found that it has no power to actually recreate a trust deed, explaining:13We are not in the same situation as one is when there is a lost will. What the court is doing is advising the trustee as to whether it would be justified in dealing with the trust property in the way in which it proposes. It is clear that the trustee recognises that it does not hold the trust property beneficially.[77] In that case, there was secondary evidence available from a retired accountant who had had direct involvement in the administration of the trust, in the course of which he had written a letter detailing the operative provision of the trust which specified how the income and capital was to be distributed. His letter contained the following paragraph:The Trust Deed provides that the income derived by the trust is to be paid to James D B Carr during his life and further provides that after the death of James D B Carr the property is to be held as to both capital and income for12 Re Porlock Pty Ltd [2015] NSWSC 1243.13 At [2].all and/or any of his children living at his death or attaining the age of 21 and if more than one in equal shares as tenants in common.[78] The accountant had sworn an affidavit in the proceeding confirming his belief that his letter accurately set out both a list of the assets and the terms of trust, and further having regard to the terms of his letter, his belief that he had referred to and quoted from the actual trust deed when writing his summary of the operative terms of the trust.[79] The accountant also deposed to the trust deed having been stored at his office up until his retirement some years earlier, and to the steps taken to undertake a thorough search to locate the deed or a copy of the deed, without success.[80] The Court concluded that the evidence of the accountant, particularly thatcontained in his letter, was the "best evidence" as to what the terms of the deed were,and found that the trustees would be justified in acting upon the letter with the observation that, if at some time in the future the deed did happen to turn up and wasfound to contain provisions inconsistent with the accountant's letter, the trusteeswould nevertheless have the protection that the management and disposition of the trust fund was in accordance with the Court's advice.[81] The second case involving a lost trust deed to which Mr O'Neill refers is D R McKendry Nomimees Pty Ltd,14 where the Supreme Court of Victoria dealt with an application for a declaration in connection with a deed creating a family trust which could not be found. The applicant sought a declaration that the missing deed which established the McKendry Family Trust was in the form of a pro forma set of trust deed documents customarily used by the solicitor who had drafted the McKendry Family Trust deed and who deposed to having used that documentation, and whichhe said named Mr McKendry's two sons as the beneficiaries. The solicitor also deposed to having procured registration of a trustee company as the corporate trustee for the trust.[82] In delivering the judgment of the Court, Digby J noted that where an original document constituting a trust has been lost or destroyed, proof of the contents of the14 D R McKendry Nominees Pty Ltd [2015] VSC 560.document may be given by secondary evidence.15 However, there must be clear and convincing proof not only of the existence of the document but also of its contents. In considering the availability of secondary evidence, Digby J said:[8] The plaintiff submits, and I accept, that in considering the probative value of evidence about the contents of a missing trust deed the court would usually give greater weight to the evidence from a lawyer, who was the author hereof [sic], than evidence from a lay person were such evidence to be called.[83] The Court considered detailed evidence as to the inquiries which had been made in an endeavour to locate a copy of the missing deed, and then referred to whatit described as "cogent evidence" that had been filed as to the settling of the trust andthe terms of the trust deed as given by the solicitor responsible for receiving MrMcKendry's instructions, drafting the deed, and attending to incorporation of thecorporate trustee. Digby J concluded that from the evidence that there was:16a more than sufficient basis to conclude that the McKendry Family Trust executed in 1980 was in the form of [the pro forma draft] to Mr O'Connor'saffidavit of 14 August 2015.Further, I consider that there is significant supporting evidence for the existence and due execution of the Trust Deed. That further evidence, in my view, establishes that since the Trust was settled, certain persons, including the Trustee, the beneficiaries and advisers to the Trust have acted in a way consistent with the due establishment of the Trust.[84] Having considered what it described as "persuasive evidence as to the terms and execution of the missing trustee", Digby J proceeded to make the declaration sought.[85] These two Australian cases illustrate the point that a lost trust deed does not necessarily prevent an applicant from obtaining either judicial advice or a declaration that the trust nevertheless subsists. However, in both those cases, there was clear and convincing evidence both as to the formation and existence of the trusts and as to their essential and requisite terms. In Porlock, that clear and convincing proof camefrom the accountant's letter setting out the essential terms of the deed, and inMcKendry, the proof was provided by the solicitor who had taken instructions and15 Referring to Maks v Maks (1986) 6 NSWLR 34.16 At [26] – [27].preparing the deed and who was able to satisfy the Court that the form of the pro forma documentation presented to the Court was the form and content of the missing deed. The solicitor was also able to confirm the instructions of the settlor and the identity of the beneficiaries as Mr McKendry's two sons.[86] Unlike the abovementioned cases, here Mr McNiece - as solicitor who attended upon Rex White, took his instructions and prepared the deed that established the RWFT - is unable to provide any contemporary documentation or notes that would reliably establish the details of his instructions and the terms of the trust deed that he then prepared for Rex White. He has no file or file notes as they have been destroyed or lost, and has no memory or recollection of the terms and contents of the RWFT deed, beyond what is contained in the draft deed.[87] The best and indeed only written material that can be found is the draft deed that was sent by Mr McNiece to Mr White in May 1992. However, that draft deed, as I will explain, is riddled with errors and contains several extraneous and irrelevant provisions that would unlikely have been overlooked and approved by Rex White in a final and executed deed. In any event, the errors and deficiencies of the draft deed are of such significance as to make it impossible for the Court to be satisfied and certain as to the actual terms of the RWFT.The draft deed examined[88] In his evidence, Mr McNiece explained that in preparing the draft deed, he used a template from an earlier deed of family trust he had prepared and used for another client. He accepts that in the course of preparing the draft deed for Mr White, he overlooked a number of errors it contained, and that some parts of the deed related to another of his clients and was of no relevance whatsoever to RexWhite's family trust. Mr McNiece described Rex White as being quite particular, andsaid that he expected that Rex would have located the errors and would have required them to be corrected before the final deed was executed.[89] If Rex White did require the various errors and other inappropriate contents of the draft deed to be corrected and changed, it follows that the final executed form of the trust deed would have been significantly different to the draft deed. Thatinevitable conclusion, on its own, is detrimental to the parties' contention that there is a valid and subsisting trust in existence in circumstances where the Court is being asked to treat the draft deed (at least in material respects) as accurately reflecting the provisions of the RWFT deed.[90] Put simply, if the draft deed does not represent the terms of the missing and executed deed, then the Court has no reliable basis upon which to determine whether there is certainty as to the objects of the trust. Returning to the contents of the draft deed, the errors and misdescriptions contained in it are in my view extensive, and such that the Court can have no confidence or certainty as to the actual terms of the executed deed, and particularly, the terms identifying the beneficiaries and the ultimate beneficiary or beneficiaries. That being the case, the RWFT does not have the essential certainty of objects that it must exhibit in order to remain valid, and it will fail. I now set out and describe the errors and deficiencies of the draft deed.Erroneous and irrelevant provisions in the draft deed[91] The draft deed contains provisions stipulating the interpretation to be appliedto a number of specified terms including the term "discretionary beneficiaries". It provides:"discretionary beneficiaries" means:(a) REX WHITE(b) The children of the Whites;(c) the spouses of any of the children of the Whites;(d) grandchildren born before the date of distribution;(e) the spouses of any of the grandchildren born before the date of distribution; and(f) any charitable objects which the Trustees may in their absolute discretion select. In the exercise of this discretion the Trustees may have regard to, but shall not be bound by, the wishes of the Settlor as expressed to them in writing from time to time.(g) The wife of REX WHITE"child" and "children" shall include any adopted child or children."grandchildren" means the grandchildren of the Scotts."the Whites" means "REX WHITE" and MINNIE BEATRICE WHITEthe "Minimum Number of Trustees" shall be two (2).[92] First, the Whites did not themselves have any children. Mrs White was 64 years old at the time the draft deed was prepared in May 1993, and as she has explained in her evidence, in the course of their relationship and marriage, she was unable to conceive and the couple had no intention of adopting any children.Consequently, reference in the draft deed to "The children of the Whites", as thediscretionary beneficiaries, was wholly inappropriate and irrelevant to their situation.[93] Similarly, the inclusion within the discretionary beneficiaries of "the spouses of any children of the Whites" was also erroneous and irrelevant as the Whites hadno children who would have spouses.[94] Furthermore, the inclusion within the discretionary beneficiaries of grandchildren, and any spouses of grandchildren of the Whites, was also erroneous and irrelevant to the Whites.[95] A further error appears in the definition of the term "grandchildren", which is defined as meaning the "grandchildren of the Scotts". The Scott family were anentirely unrelated party, but were also clients of Mr McNiece.Discrepancies between the draft deed and the executed deed (the terms of the latter being unknown)(a) The settlor – Mr Ellis or Rex White?[96] The list of discretionary beneficiaries also includes "any charitable objectswhich the Trustees in their absolute discretion select", with provision for the trusteesto have regard to, but not be bound by, the wishes of the settlor expressed to them in writing from time to time. This too is problematic, as the settlor named in the draft deed was not Rex White, but Mr Ellis, a solicitor then in legal practice in Auckland. Mr McNiece gave evidence that he had a practice when drafting trusts not to make aperson who was going to derive a benefit from the trust, either the settlor or trustee of the trust. For that reason, he says he had named Mr Ellis as the settlor of the trust.[97] However, if Mr Ellis was in fact intended and named as the settlor, it makes no sense to make provision for the trustees to have regard to his wishes as to the selection of charitable objects. It is unlikely that a professional and wholly independent settlor, whose only role is to fulfil a formal legal requirement in order to establish the trust, would have any continuing role, let alone any need to express written wishes as to which charitable objects should be selected by the trustees to receive distributions from the trust. Such a provision is however consistent with Rex White being intended and named as the settlor, and being directly involved in the business of the trust on a continuing basis and himself being a beneficiary.[98] More significantly, in dealings and correspondence following the formation of the RWFT, Mr McNiece specifically referred to Rex White as being the settlor of the trust.[99] In the letter dated 1 July 2014, Mr McNiece wrote to Mrs White's solicitorsBrowne Linkenbagh, and referred to the "settlors [sic] intention" in terms that was aclear reference to Rex White. By 2014, Mr McNiece was well aware that the RWFT deed was lost, and while he was obviously relying on the terms of the draft deed, in which Mr Ellis was named as the settlor, as evidencing the terms of the trust that he and Mr Davis were administering, it is inconceivable that he would have referred to Rex White as being the settlor, unless that was what he understood to be the correct position.[100] Having considered this evidence, and notwithstanding Mr Ellis being namedas settlor in the draft deed, I am not satisfied by Mr McNiece's evidence that MrEllis was in fact named as the settlor in the RWFT deed. The fact that the trustees themselves proceeded upon the footing that Rex White was the settlor is evidenced by Mr McNiece stating in his correspondence that he and his co-trustee were mindfulof Rex White's intentions as settlor as to whether or not Mrs White should receive any capital of the trust because Rex did not want any trust money to eventually passto Mrs White's family. Obviously, such an approach is consistent with a belief thatRex White was the settlor, and Mr McNiece particularly as drafter of the executed RWFT deed, could be expected to know who the settlor was.[101] At the very least, the actions of Mr McNiece describing Rex White as the settlor casts doubt as to who the actual settlor named in the executed deed was, with the consequence that the Court cannot be at all sure or certain as to who was in fact named as settlor in the executed deed.[102] Accordingly, I consider that the naming of Mr Ellis as settlor in the draft deed is an inconsistency between the draft deed and the executed deed, and I consider that this is another aspect of the draft deed that I cannot confidently treat as accurately reflecting the terms of the RWFT deed.(b) Rex White's son, Christopher – was he included and named as a beneficiary in the RWFT deed?[103] Another inconsistency between the draft deed and the terms of the RWFTdeed relates to Rex White's son, Christopher. In Mr McNiece's letter of 1 May 1993to Rex White, with which he enclosed a copy of a deed of trust, he said:I note your instructions that your son is not to be a Beneficiary under the Trust. I have still included him as a discretionary beneficiary but naturally no money will be paid to him unless you so authorise. I think that it is better to have him in there as a discretionary beneficiary.[104] However, the draft deed contains no mention of Christopher. Mr McNiece explained in evidence that he may have based his comments about having included Christopher as a discretionary beneficiary, on an assumption that he was included byvirtue of the reference to "The Children of the Whites" within the discretionarybeneficiaries.[105] However, the term "The Whites" was defined in the draft deed as meaning "Rex White and Minnie Beatrice White", and obviously, Mr McNiece knew that Christopher was not a child of the Whites.[106] Here too, I cannot accept Mr McNiece's evidence and explanation. I find thatthe absence of any reference to Christopher in the draft deed is yet another indicationthat the draft deed does not accurately reflect the contents of the executed RWFT deed.(c) Was a primary beneficiary named in the RWFT – and if so, who?[107] The draft deed provides for distribution of capital to the "primary beneficiary". Paragraph 4 of the draft deed provides:4. CAPITALAt any time before the date of distribution the Trustees may in their absolute and uncontrolled discretion pay or apply the whole or any part of the Trust Fund for or towards the personal support, benefit, maintenance, education or advancement in life of any one or more of the discretionary beneficiaries to the exclusion of any one or more of them in the absolute discretion of the Trustees and upon the date of distribution the Trustees will pay the balance of the Trust Fund then remaining to the primary beneficiary. (emphasis added)[108] The fact that paragraph 4 of the draft deed makes provision for a primary beneficiary is a clear signal that such a primary beneficiary was intended to be specified and identified in the deed. However the draft deed contains no mention of who the primary beneficiary is.[109] The naming of a primary beneficiary is a significant feature of a trust by identifying with certainty the person to whom the trustees are to pay any remaining trust capital upon the vesting and date of distribution of the trust. The omission of any reference to the identity of the primary beneficiary in the draft deed is a very significant error and omission that directly informs the issue as to the existence of the certainty of objects of the RWFT. Without a named primary beneficiary, the trustees are quite unable to apply paragraph 4 of the draft deed, and there can be no certainty as to whether the settlor intended Mrs White, the Freemasons New Zealand, or any other person or organisation as the primary beneficiary of the trust.[110] Mr McNiece explains the failure of the draft deed to specify the primary beneficiary as an error in drafting the document. If so, it would have been a startling omission. It is inconceivable that the omission of such a key and fundamental provision of the RWFT, would have escaped the attention of both Rex White and Mr McNiece when reviewing the draft deed prior to execution of the final version.[111] But irrespective of the reason for the omission, it leaves a large gap that cannot be filled by means of speculation and guesswork as to who the settlor intended as the primary beneficiary. For the reasons already expressed above, I consider that the power given to the trustees in the draft deed to include any charitable objects as discretionary beneficiaries, does not provide the requisite certainty that would authorise and enable the trustees to pay the capital of the RWFT to Freemasons New Zealand.The inconsistencies of the trustees in their explanations and descriptions of the RWFT and its objects[112] To summarise, the parties and in particular, the applicants, have not and cannot satisfy the Court as to what the terms of the RWFT deed are. Mr McNiece'sexplanation as to his understanding and belief as to the terms of the trust and contents of the executed deed falls well short of proving the essential terms of the trust necessary to establish the requisite and essential certainty as to the objects of the RWFT. Mr McNiece's statements and conduct as regards the RWFT and its terms, particularly as regards the objects and beneficiaries of the trust has been inconsistent, and I regret to say that I find his evidence on these issues to be unreliable.[113] As previously noted, at an early stage following Rex White's death inNovember 2001, Mr McNiece advised Mrs White that she was the sole beneficiaryof the assets held in the trust, informing her that "all of the assets in the trust and the estate are effectively yours". He provided information to the same effect to theAustralian solicitor, Mr Ward-Harvey, and also made it clear to Mrs White that she was the sole beneficiary by various means of the New Zealand assets.[114] However, as also noted earlier, in 2014, Mr McNiece and his fellow trustee, Mr Davis, took an entirely different approach, with Mr McNiece advising Mrs White through her Australian solicitors that she was not the sole beneficiary and that the trust capital was to be distributed amongst, first various charities, and then the laterstage advice that it was intended to be distributed to "The Masonic Lodge". Thiscontradictory position adopted by Mr McNiece and Mr Davis as trustees, in myview, clearly demonstrates that there can be no certainty as to what the settlor'sactual intentions were as set out in the RWFT deed.[115] It is again inconceivable that Mr McNiece, who drafted the deed, would have advised both Mr Ward-Harvey and Mrs White in 2002 that she was the sole beneficiary of the New Zealand assets, if that information was inconsistent with his then actual knowledge and belief that Rex White had provided in the deed that the ultimate beneficiary of the trust was Freemasons New Zealand or the Masonic Lodge.[116] Although that fundamental change of position by Mr McNiece is of itself sufficient to demonstrate that the present situation provides no certainty as to the objects of the RWFT, there are other aspects of his conduct and evidence that renderhis, and thereby the applicants', contention as regards the settlor's intentions and theultimate beneficiary of the trust, questionable and thereby lacking the cogency and reliability that the Court would require before accepting his evidence and theapplicants' position.[117] Mr McNiece, in my view, misinformed Mrs White's solicitors, Browne Linkenbagh, when writing to Mr Brown on 1 July 2014 and stating that it was thesettlor's intention that upon Mrs White's death, "the moneys be distributed amongst various charities and there is provision in the trust deed for that to be done". If, as Mr McNiece and Mr Davis claim, the settlor's intention was in fact to ultimately benefit Freemasons New Zealand, then advising Mrs White's solicitors that thesettlor's intention was that money be distributed amongst "various charities"obfuscated the true position.[118] Mr McNiece also sought in the course of his evidence to resile from a statement he made in his second sworn affidavit filed with the Court in which he stated:Additionally, I have made payments to the respondent by way of capital distributions from the Rex White Family Trust as follows;(a) 5 November 2002 $23,975.46.(b) 17 March 2003 $50,000.(c) 10 July 2013 $34,000.[119] Mr McNiece in his evidence regarding the sum of $55,600 advanced to the RWFT by Mrs White, acknowledged that sum had been due and owing by the trust to her but claimed that the capital distributions that he referred to had included, and thereby repaid, that debt owing to her.[120] Again, I consider that explanation to be implausible as at no time when those capital distributions were made to Mrs White, was there any mention made by Mr McNiece that the money being paid to her was in repayment of the debt owed to her. I am satisfied that these capital distributions were just that; distributions of capital from the RWFT and that there remains a debt owing by the trust to Mrs White of $55,600 together with any interest accumulated from the investment of those funds.[121] As noted earlier, Mr McNiece also adopted an inconsistent position on different occasions as to who the settlor of the RWFT was. In correspondence to Browne Linkenbagh on 1 July 2014, he referred to the settlor in terms that made it clear he was referring to Rex White. However, in his evidence before me, he asserted that Mr Ellis was the settlor and that Mr Ellis had been used as the settlor inaccordance with Mr McNiece's practice at the time not to have a person who was going to derive a benefit from the trust as the settlor. Again, those two positions are obviously inconsistent. For the reasons set out above, I consider it more likely that Rex White was the actual settlor of the RWFT, although that conclusion cannot be said to be certain.[122] Mr McNiece also advanced what I considered to be an implausible explanation for the absence of any reference to Mr White's son, Christopher, in thedraft deed. Mr McNiece suggested in evidence that although he had advised RexWhite in his letter of 1 May 1992 that he had left Christopher in as a discretionarybeneficiary, he may not have in fact named Christopher in the RWFT deed becauseof an assumption that he was included within and covered by the reference tochildren of the Whites as being discretionary beneficiaries of the trust. Thatsuggestion is again implausible as the children of the Whites was limited by theterms of the deed to the children of Rex and Beatrice White and, as the draftsman ofthe deed, Mr McNiece, must have appreciated that Christopher would not fall within the scope of that defined description.[123] The applicants apply for an order that the trustees may exercise their absolute and uncontrolled discretion to pay the whole of the trust fund to the charity the Freemasons New Zealand. In these circumstances, it is relevant to note that both Mr Davis and Mr McNiece have a connection with the Freemasons. Rex White was a member of the Freemasons in Australia, and Mr Davis has confirmed that he is a member of the Freemasons in New Zealand. Mr McNiece was formerly a member of the Freemasons in New Zealand between 1988 and 1995.[124] However, when opening the applicants' case, Mr Gould stated that while MrDavis was a Freemason, Mr McNiece was not. When he gave evidence, Mr McNiece was asked whether he was a member of the Freemasons and his answer was that he was not. The inference which was obviously sought to be drawn was that he was not himself involved with the Freemasons, and consequently, his actions as trustee and his evidence for the applicants should be viewed as entirely independent of the Freemasons. However, after Mr McNiece had concluded his evidence, the issue was raised with counsel as to whether he had ever been a member of the Freemasons and, as a result, the Court was informed that Mr McNiece had previously been a member. The applicants subsequently filed a memorandum with the Court in which it was confirmed that Mr McNiece had been a member of theFreemasons' Panmure Lodge from 1988 to 1995.[125] Mr McNiece's initial position that he was not a member of the Freemasons, without adding a qualification that he had previously been a member, was in my view misleading. If not taken further, it would have left the impression that he was to be regarded as entirely unconnected with the Freemasons and that his decision as trustee to elect Freemasons New Zealand as the ultimate beneficiary of the trust fund, should be viewed in that light. This is a further aspect of his evidence that I find unsatisfactory.[126] Although Mr McNiece deposed in his affidavit that it had always been the advice of Mr Davis "and indeed Mr White whilst he was alive, to both Mr Davis andmyself, that Mr White wished to benefit the Society of Freemasons (Freemasons New Zealand) and not his widow", there is no written note, instruction or document that records that being Rex White's intention.[127] Mr McNiece accepted when cross-examined that the draft deed contained noreference to Freemasons New Zealand and, consequently, apart from the evidence ofMr Davis and Mr McNiece as to Rex White's expressed intention that FreemasonsNew Zealand should benefit from the RWFT, there is no other evidence that wouldsupport that contention. As I have already noted, Rex White's statements to thateffect to Mr Davis were made well before the execution of Rex White's will or theexecution of the deed establishing the RWFT. So those statements to Mr Davis,which were not made at the time of the establishment of the RWFT, in my view donot provide any reliable evidence or support as to what Rex White's intentions wereregarding the ultimate application of the monies.[128] In contrast to the evidence of Mr McNiece, I found the evidence of Mrs White to be forthright, uncomplicated and entirely reliable and credible. She explained how she had been given the clear understanding from her dealings with Mr McNiece and Mr Ward-Harvey that she was the sole beneficiary and owner of the assets held in both the trust and the estate, and that she maintained that belief and understanding throughout the course of numerous dealings with Mr McNiece between November 2001 to 2014. It was only when she approached Mr McNiece in 2013, seeking funding to pay for an overseas trip and in respect of which she wished funding to pay for a friend to accompany her, that she encountered a marked change of attitude from Mr McNiece and his fellow trustee.Conclusion[129] It is clear that Rex White did establish the RWFT in 1992, and that there was an RWFT deed evidencing the trust which was registered with the IRD. However, the trustees have been shown to have acted inconsistently and they are unable to demonstrate by reference to either documentation or cogent and reliable evidence,what the objects of the trust that they are trustees of were or are. As a consequence, I find that there is no certainty of the requisite objects of the RWFT, and in the absence of that essential certainty, I find that the RWFT has failed by reason of uncertainty.[130] As a consequence, the applicants do not have the responsibility or possess the power as trustees to retain and manage the trust funds which, in the absence of the existence a valid and effective trust, reverts to the estate of Rex White, to which Mrs White is entitled as the sole beneficiary of his estate.[131] Having regard to my finding that the trust has failed, it is strictly unnecessaryfor me to determine Mrs White's entitlement to the sum of $55,600, being theamount she advanced to the RWFT in or about November 2002, as those funds are presently indivisibly held as part of the RWFT trust monies, all of which she is entitled to receive. However, in the event that it is or becomes relevant, I find that the RWFT remains indebted to Mrs White in the sum of $55,600 in respect of her loan advanced, and that sum together with any accrued or accumulated interest thereon is due and payable to her from the fund representing the corpus of the RWFT.[132] The result of the Court's finding is that the applicants do not have any power or authority to use or apply the funds that they held as trustees of the RWFT for any purpose other than repaying and transferring the funds through the executor of the Rex White estate and thereby on to Mrs White. The applicants are not authorised or empowered to use or apply any of the funds for or towards the payment of costs, expenses or legal fees without prior approval of the Court.[133] The applicants have failed in their application, and the respondent Mrs White, is entitled to costs. However, I reserve the question of costs and direct that the parties file memoranda on costs within 14 days from the date of delivery of this judgment._____________Paul Davison J