RENFREE & Anor V RENFREE & Ors HC TIM CIV-2009-476-000176

RENFREE & Anor V RENFREE & Ors HC TIM CIV-2009-476-000176

Rectification was granted and the s64A variation approved because the vesting provision as drafted plainly contradicted the proved intention of the settlors that the trust endure for the benefit of their children and potential grandchildren; extending the vesting day to 80 years gives effect to that intention and is supported by beneficiary representation.

Citation
openlaw-e3e30c15_8f22_4fb8_ba43_284cf805b805.pdf
Parties
Plaintiff and Defendant: David Renfree; Plaintiff and Defendant: Kathleen Bronwen Renfree; Defendant: Myrna Janice Carson; Interested Beneficiaries: Adult discretionary beneficiaries (represented); Interested Beneficiaries: Unborn children (represented)
Court
High Court
Jurisdiction
New Zealand
Judgment Date
16 April 2013
Procedural Posture
Trust Variation and Rectification Under Trustee Act 1956 S64 a / Judgment (on the Papers)
Outcome
Rectification granted; variation under s64A approved; vesting period extended to 80 years; costs awarded to plaintiffs; leave reserved to apply for costs amount.
Legal Topics
Rectification of Trust Deed, Variation of Trust Under S64 a, Vesting Period, Representation of Unborn Beneficiaries
Trusts Equity Property Law Rectification of Trust Deed Variation of Trust Under S64 a Vesting Period Representation of Unborn Beneficiaries

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Parties

David Renfree

Plaintiff and Defendant

Kathleen Bronwen Renfree

Plaintiff and Defendant

Myrna Janice Carson

Defendant

Adult discretionary beneficiaries (represented)

Interested Beneficiaries

Unborn children (represented)

Interested Beneficiaries

Procedural Posture

Trust Variation and Rectification Under Trustee Act 1956 S64 a / Judgment (on the Papers)

Legal Issues

  1. 1 Whether the Trust Deed should be rectified to correct a mistake in the definition of Vesting Day
  2. 2 Whether the court should approve variation of the Trust under s64A of the Trustee Act 1956 to extend the vesting period to 80 years
  3. 3 Whether interests of unborn beneficiaries are adequately represented

Ratio Decidendi

Rectification was granted and the s64A variation approved because the vesting provision as drafted plainly contradicted the proved intention of the settlors that the trust endure for the benefit of their children and potential grandchildren; extending the vesting day to 80 years gives effect to that intention and is supported by beneficiary representation.

Court Disposition

Rectification granted; variation under s64A approved; vesting period extended to 80 years; costs awarded to plaintiffs; leave reserved to apply for costs amount.

Orders

  • Rectification of the Trust Deed granted.
  • Variation of the Trust Deed under Trustee Act 1956 s64A approved.