New Zealand Case Law: Decisions & Judgments

Topic

Power of appointment

Legal area

Court

9 Jul 2019

FL Trustees 2012 Limited & Ors, as trustees of the Valerie Moore Family Trust v Moore [2019] NZHC 1588 [9 July 2019]

Citation

[2019] NZHC 1588
Court

High Court

Medical evidence established Mrs Moore's mental incapacity; under the trust deed and s 43(1) Trustee Act 1956 the power of appointment passed to FL Trustees who, exercising powers under the deed, validly retired Mrs Moore and appointed Michelle and William; the Court, satisfied vesting is expedient and necessary for the new trustees to perform their duties, exercised its s 52 power to vest the two titles in the new trustees; appointment of a litigation guardian was dispensed with as futile given incapacity and the limited, mechanical nature of the relief.
4 Sept 2018

COMMONS v COMMONS [2018] NZHC 2301

Citation

[2018] NZHC 2301
Court

High Court

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 ac…
18 Dec 2017

MORRIS & ORS v WORTHINGTON & ORS [2017] NZHC 3182

Citation

[2017] NZHC 3182
Court

High Court

Summary judgment was dismissed because there existed an arguable defence as to the legal effect of the 1 May 2015 deed (internal inconsistency between assignment and disclaimer, possible tardy disclaimer, and factual disputes regarding the circumstances of execution), meaning there remained real questions to be tried which precluded summary disposal.
11 Feb 2016

GUTMANN v GUTMANN [2016] NZHC 107

Citation

[2016] NZHC 107
Court

High Court

Medical evidence established that the defendant suffers from severe advanced dementia and is incapable of performing trustee duties; accordingly the Court removed him as trustee, appointed Stephen Michael Gutmann as replacement trustee and ordered vesting of trust assets and the registered land in the plaintiff and Stephen as trustees of the Elbach Trust.
24 Nov 2015

Harrison v Harrison [2015] NZHC 2935

Citation

[2015] NZHC 2935
Court

High Court

The 4 October 2009 resettlement resolution was invalid because it involved self-dealing and conflict of interest: a trustee (Graeme) signed a resolution creating a beneficial interest in himself and another trustee (Adrienne) became a beneficiary by the resettlement contrary to cl 12 and the equitable rule against self-dealing; the transaction is therefore ineffective and the Waiheke property remains subject to the original Valerie Geard Trust; accordingly the plaintiffs' application to authorise sale/distribution and to remove the caveat was declined.
18 Nov 2015

NZ MAORI COUNCIL v FOULKES CA247/2014 [2015] NZCA 552

Citation

[2015] NZCA 552
Court

Court of Appeal

The trust deed (clause 6.2) does not authorize NZMC or FOMA to delegate their joint power of appointment to a separately constituted third party; the power is fiduciary and non‑delegable absent express authority; the January 2014 agreement constituted an unlawful delegation; parties may, however, form bodies to make recommendations provided ultimate appointment decisions are made by and under the control of each appointor's executive in accordance with their constitutions; appeal dismissed and fresh evidence excluded.
11 May 2015

HENSMAN [2015] NZHC 1004

Citation

[2015] NZHC 1004
Court

High Court

The Court found the 2016 vesting date was a drafting mistake inconsistent with the trust's purpose; all adult beneficiaries consented, the proposed amendments are administrative and not detrimental to minors or unborn beneficiaries, and therefore under s64A the Court granted the variations to extend the trust period and to clarify the power of appointment.
9 Dec 2014

WIGHTMAN & ORS v PUBLIC TRUST [2014] NZHC 3124

Citation

[2014] NZHC 3124
Court

High Court

The Court held there had been no final distribution (Public Trust retained legal title), an extension of time to bring the FPA claim was justified, and on assessment of the testator's moral duty as at 1965 (applying the composite concept of maintenance and support) Wallace breached his duty by delegating an unfettered appointment to Clara which resulted in grossly disparate treatment of equally eligible grandchildren; remedial relief of $150,000 each to the five claimants was necessary to discharge the moral duty while avoiding unfairly displacing the legitimate reliance of the appointed bene…
26 Mar 2013

WIGHTMAN AND OTHERS V PUBLIC TRUST HC CHCH CIV 2012-409-001312

Citation

openlaw-2fc81e8a_425e_4bc1_ab0d_bb37648cd69f.pdf
Court

High Court

Neither cause of action estoppel nor issue estoppel arises from the 1971 judgment because Wilson J's findings addressed only the then-claimants (who were capable of claiming) and did not determine or implicitly decide the rights of grandchildren or the validity of the power of appointment; the power of appointment issue fell away and was not necessary to the earlier decision.
19 Mar 2013

HENDERSON & Ors V HENDERSON & Ors HC CHCH CIV-2012-409-002370

Citation

openlaw-cf155265_9316_45d6_a456_4bac82a0dc7b.pdf
Court

High Court

The court found the circumstances existing when the Will was made (including a subsequent proposal during the overseas trip and the deceased's expressed intent to marry) demonstrated the Will was made in contemplation of marrying Helen Baker, therefore s18(3)(a)(ii) applied and the marriage did not revoke the Will; probate was granted to the named executors.